87  Washington  St. 

CHICAGO. 


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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 


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A  TREATISE 


ON  THB 


LAW  OF  REAL  ESTATE, 


AND  OF  THB 


MODE  OF  ALIENATION  THEREOF; 

WITH  AN  APPENDIX  OF 

rOEMS  OF  CONVEYANCING,  AND 'NOTES: 

gtuiptcBf  to  tjc  3lato  of  ti)e  State  of  Ncto  Yorb.  _ 

BY  JOHN  WILLAED,  LL.D., 

LATB  ONE  OP  THE  JUSTICES  OP  THE  SUPREME  COURT  OP  THB  STATE  OP  NEW  YORK, 

AND  AUTHOR  OP  A  TREATISE  ON  BaOITr  JURISPRUDENCE,  AND  A  TREATISE 

ON  THB  LAW  OF  EXECUTORS,  ADMINISTRATORS  AND  OUARDIAMS. 


ALBANY : 
WILLIAM  GOULD,  LAW  BOOKSELLER, 

No.  60,  STATE  STREET. 

18  6  9. 


EsTEBED  according  to  act  of  Congress,  in  the  year  one  thousand  eight  huodred  and  sixtj'-ane, 

By  WILLIAM  GOULD, 

in  the  e/erk's  office  of  the  district  court  of  the  northern  district  of  New  York. 


\jdUlt>  ^ 


Chables  Van  Bknthtjysen  &  Sons, 
Printers  and  Binders. 


PREFACE. 


THE  object  of  this  treatise  is  to  give  a  general  view  of  the  exist- 
ing law  of  real  property  in  this  state,  and  of  the  mode  of  con- 
veying and  charging  the  same. 

No  man  can  become  a  good  pleader  or  conveyancer  until  he  has 
become  acquainted  with  the  doctrine  of  estates.  It  is  indispensable 
that  he  should  know,  when  called  upon  to  advise  as  to  the  form  of 
a  deed,  lease  or  mortgage,  what  interest  the  grantor  possesses,  and 
what  he  proposes  to  convey  to  another ;  how  that  interest  may  be 
affected  by  charges  and  incumbrances ;  and  how  these  latter  may 
be  ascertained  and  removed.  The  whole  law  of  title  to  things  real, 
whether  derived  by  descent  or  purchase,  is,  therefore,  an  essential 
part  of  the  education  of  a  lawyer ;  and  especially,  of  a  conveyancer. 

There  are  few  subjects  of  English  jurisprudence  which  have 
been  more  fully  discussed  than  those  which  relate  to  real  estate, 
and  its  mode  of  alienation.  From  the  time  when  Littleton  wrote 
his  treatise  on  Tenures,  more  than  four  hundred  years  ago,  to  the 
present  day,  the  subject  has,  in  various  forms,  enlisted  the  best  tal- 
ents of  the  English  juridical  writers.  Although  most  of  their  works 
contaiu  matter  of  great  value  to  an  American  student,  they  are 
encumbered  with  much  that  is  useless  to  him,  and  which,  indeed, 
may  in  many  instances,  mislead  him. 

Our  jurisprudence,  though  based  upon  the  common  law,  under- 
went many  changes  in  adapting  itself  to  the  condition  of  the  country. 


jr 


PREFACE. 


It  -was  besides  modified  from  time  to  time  by  the  usages  and  leg- 
islation in  colonial  times.  It  was  radically  changed,  in  some  of  its 
features,  at  the  close  of  the  revolution.  But  the  greatest  and  most 
thorough  revision  and  reforms  were  made  by  our  revised  statutes, 
which  went  into  operation  in  1830.  That  year  maybe  taken  as  the 
era,  at  which  our  law  of  real  property  was  made  to  assume  a  regu- 
lar and  consistent  shape.  The  statutes  as  thus  revised,  together 
with  the  judicial  decisions  and  subsequent  enactments,  and  such 
portions  of  the  common  law  as  have  been  retained,  constitute,  at 
this  day,  the  law  of  New  York. 

Although  the  revision  was  accomplished  by  gentlemen  of  great 
talents  and  extensive  acquirements,  and  the  work  was  executed 
with  an  ability  which  will  forever  entitle  its  authors  to  our  rever- 
ence and  gratitude,  it  was  ob\aous  from  the  very  nature  of  all 
human  institutions,  that  there  would  still  remain  doubts  and  diffi- 
culties which  could  only  be  solved  by  judicial  expositions,  or  by 
the  legislature.  Until  the  system,  therefore,  had  been  in  operation 
for  years,  and  its  various  provisions  subjected  to  the  test  of  actual 
experience,  the  full  effect  of  the  various  changes  which  were  made, 
could  not  be  known.  A  treatise  written  immediately  after  the  re- 
vision could  only  give  the  changes  in  connection  with  the  former 
law ;  but  could  not  with  safety  anticipate  the  views  which  the 
courts  might  adopt,  after  the  searching  criticisms  of  learned  counsel. 
It  was  the  opinion  of  some  eminent  jurists  that  a  century  would 
elapse  before  the  law  of  trusts  and  of  powers,  for  example,  as  mod- 
ified by  the  revised  statutes,  would  be  as  well  understood  as  they 
were  before  the  revision.  Men  are  governed  more  by  usage  than  by 
written  law;  and  hence  it  requires  time  to  mature  any  system, 
however  wisely  it  may  be  devised. 

Most  of  the  changes  introduced  into  our  law  of  real  estate  have 
been  in  operation  over  thirty  years;  some  indeed  for  more  than 
twice  that  period,  and  a  few  others  for  a  shorter  time.  The  re- 
ported decisions  of  our  higher  courts,  since  1830,  embrace  near  a 
hundred  volumes;  in  addition  to  which  many  volumes  of  opinions 


PREFACE. 


of  subordinate  tribunals  of  great  learning  and  respectability,  have 
also  been  published.  Various  questions  in  the  law  of  real  property 
have  been  elaborately  discussed  and  examined,  in  these  volumes. 
Many  doubtful  questions  have  become  settled;  and  the  people  have 
become  accustomed  to  the  system.  It  would  seem  that  it  is  not 
too  early,  at  this  time,  to  bring  these  decisions  into  harmonious 
connection  with  our  former  law,  and  our  existing  statutes. 

In  the  Appendix  are  collected  a  number  of  forms  of  such  convey- 
ances as  most  usually  occur  in  practice,  together  with  such  forms 
of  acknowledgments  and  proofs  of  their  execution  as  are  essential  to 
entitle  them  to  be  recorded.  Great  pains  have  been  taken  to  insert 
none  but  such  as  may  be  relied  on  by  the  practitioner ;  and  sub- 
joined to  the  precedents  are  references  to  adjudged  cases  in  which 
their  accuracy  has  been  recognized.  The  number  of  these  forms 
might  have  been  indefinitely  increased.  It  is  impossible,  and  per- 
haps not  desirable  to  anticipate  every  case  that  may  occur.  An 
attempt  to  do  so  would  swell  the  book  to  an  inconvenient  size. 

In  preparing  this  work  it  has  been  the  anxious  endeavor  of  the 
author  to  state  the  law  as  it  now  exists.  In  doing  so,  he  has  oc- 
casionally had  to  show  how  the  law  formerly  was,  and  the  reasons 
for  the  change.  He  has  in  general  referred  to  enough  of  the  ad- 
judged cases  and  approved  works  of  authority  to  enable  the  counsellor 
to  test  the  accuracy  of  his  conclusions,  and  to  pursue  the  sub- 
ject for  himself  more  at  large.  He  has  rarely  pointed  out  defects, 
conceiving  it  to  be  his  business  to  state  the  law  as  he  found  it;  and 
to  leave  it  for  statesmen  and  legislators  to  propose  the  changes,  if 
any  be  required.  Some  changes  have  indeed  been  made  by  the 
legislature  while  this  work  was  in  progress.  He  has  devoted  much 
time  and  labor  to  the  treatise,  and  hopes  it  may  be  of  use  to  the 
profession,  whose  kindness  and  indulgence  to  his  other  works  are 

most  gratefully  appreciated. 

JOHN  WILLARD. 
Saratoga  Springs,  March,  1861. 


TABLE  OF  CONTENTS. 


PAST  riRST. 
OF  THE  LAW  OF  REAL  ESTATE. 

CHAPTEK  I. 

Of  tenuek;  and  op  the  persons  capable  op  holding  and  con- 
veying LANDS ^1 

SECTION  L 
Of  tenure, •       •         ^^ 

SECTION  IL 

Or  THK  PERSONS  CAPABLE  OF  HOLDING  AND  CONVEYING  LANDS,   .     .    *      44 

CHAPTER  II. 

Op  beal  estate,  its  nature,  quality  and  quantity  op  interest,        46 

SECTION  L 
Of  freeholds  of  rsTHERiTANOE,  absolute, 49 

SECTION  IL 
Of  freeholds  of  inheritance  defeasible,  or  conditional,      ...         51 

SECTION  IIL  ' 

Of  freeholds  not  of  inheritance,  .......  55 

Estates  for  life  conventional,       .        .        .        .        .        .        . ,      .  55 

Estate  p«r  auter  vie, •        .        .  56 

Estate  by  the  curtesy, .  57 

Dower, 61 

Jointure, 67 


« 

X  TABLE  OF  CONTENTS. 

CHAPTER  VII. 

Of  estates  with  respect  to  a  several  and  joint  ownership,       176 

SECTION  I. 
Of  estates  of  oofaroenary, •       *       .       177 

SECTION  IL 

Or  ESTATES  IN   JOIKT  TENANCY, 177 

Incidents  of  the  estate, 177 

SECTION  III. 

Or  ESTATES  IN  COMMON, 182 

1.  Of  real  estates, ,        .        .  184 

2.  Of  chattel  interests, 184 

Incidents  of  the  estate,         ' 185 

Partition,  185 

Account, 187 

Repairs, 188 


CHAPTER  VIII. 

Or  INCORPOREAL   HEREDITAMENTS, 189 

SECTION  I. 

Of  coMMova, 190 

Different  kinds, 190 

How  extinguished,         .        .        . 193 

SECTION  IL 

Of  watb, 193 

By  grant, •        .  194 

Prescription, 194 

Reservation, 194 

Of  necessity, 195 

How  devested, 196 

Private  roads,  or  ways, 197 

How  extinguished, 199 

SECTION  III. 

Of  FRANCHISES, ;           .  200 

SECTION  IV. 

Of  ANNTTmES  AND  RENTS, .  203 

Different  kinds  of  rent, 204 

May  be  reserved  in  a  lease  or  grant  in  fee,          «        •        «        .        .  204 


TABLE  OF  CONTENTS.  xi 

Eviction  by  landlord, ^^^ 

May  be  apportioned, •        •  ^'■^ 

As  to  interest  on  rent, 214 

914. 

Use  and  occupation, ^^^ 

Summary  proceedings  to  regain  the  possession,       .        ,        .        .  217 

Suspension  and  extinguishment, 217 

Of  the  right  to  hght  and  air, •  218 

Running  water, ,        .        .  -i^v^ 

990 

Riparian  owner, ^^^ 

Subterranean  stream,          ; 222 

Dedication  of  streets,  etc.       ......••  223 


PABT    SECOND. 
OF  EQUITABLE  ESTATES. 


CHAPTER  I. 

Op  uses  and  trusts, 228 

Resulting  trusts, 234 

Active  trusts, 237 

Receiver, 239 

Religious  societies, •        •  240 

Trusts  in  personal  property, 242 

Death  of  a  sole  trustee, 245 

Resignation  of  trustee,       . 246 

Removal  of  trustee, 246 

When  trust  ceases, 247 

Limitation  of  actions,     ...,.'.*»•  248 


CHAPTER  II. 
Op  powers, 248 

SECTION  L 
Op  powers  under  the  statute, •       •       •       249 

SECTION  IL 
Op  powers  op  attorney  to  convey  lands, 268 


zu 


TABLE  OF  CONTENTS. 


CHAPTER  III. 

Of  mabbiage  settlements, •      272 

SECTION  I 
Of  the  origtk,  policy  and  effect  of  marriage  settlements,  .        .        272 

SECTION  It 

Of  ANTE-NUPTUL.  agreements,   and   settlements  .made  before  MARRL4.GE,  286 

SECTION  III. 

Of  POST-NUPTIAI.  agreements,   and  settlements  made  after  MARRIAGE,     .  292 


CHAPTER  IV. 
Of  merger,  ......*...      296 

SECTION  I. 
Of  the  difference  between  merger  and  certain  acts  of  law  analogous 


TO  IT, 


297 


SECTION  II. 
Of  the  ORicni  op  "merger,  and  of  the  effect  of  intention  tJPON  it,     .        299 

SECTION  III. 
Of  the  extinguishment  of  the  equitable  in  the  legal  estate,  and  of  a 

SlilPLE   contract  in   A   SPECIALTY   OR  JUDGMENT,   FREQUENTLY   DENOMI- 
NATED MERGER,         .         .         . 300 

SECTION  IV. 

Or  THE  circumstances  indispensable  TO  MERGER,       .  .  •  .  .  306 
•-•-• 

PABT    THIRD. 
OF  THE  MODE  OF  ALIENATION  OF  REAL  PROPERTY. 

CHAPTER  I. 

Or   TITLE   TO   THINGS   REAL,  .  .  .  ,  .  .  .         312 


TABLE  OF  CONTENTS.  xiii 

CHAPTER  II. 


Of  title  by  descent, 


316 


CHAPTER  III. 

Op  the  rules  of  descent,          , 322 

1st  Canon,           . 326 

2d  Canon,  '    .    ' 328 

Sd  Canon, 330 

4th  Canon, 332 

5th  Canon,  -       .•       .• •        •        •  333 

ethCanon, 33i 


CHAPTER  IV. 

Of  title  by  purchase,    ' 343 

SECTION  I. 

Or  ESCHEAT  AND  FORFEITURE, 344 

SECTION  IL 

Of  title  bt  prescription;  by  adverse  enjoyment,  and  bt  oocupanoy,  .  347 

1.  Prescription,       .        .        . 347 

2.  Adverse  enjoyment, 351 

3.  Occupancy, •        .        .  362 

SECTION  III. 
Of  title  by  election;  and  by  estoppel,     .        .        .        .        .        .        .363 

1.  Election, 363 

2.  Estoppel, 364 

(1)  By  re<?ord,      .        .        .        .        .        .        .        .        •  364 

(2)  By  writing,  wills,  deeds,             ...        *        *        .        .  366 

(3)  Estoppels  in  pais,           .        .        .    .    .        .        *        .  368 

SECTION  IV. 

Of  title  by  alienation,      . 369 


CHAPTER  V. 

Of  the  alienation  of  eeal  estate  by  the  voluntaey  act  op        * 

THE   f  ARTIES   IJfTEa  VIVOS, 372 


xiv  TABLE  OF  CONTENTS. 

SECTION  I. 
Of  alienation  by  deed, 372 

SECTION  II. 
Of  the  eequirements  esseiotal  to  a  deed,     ....       •       .       .       •        376 

SECTION  IIL 
Of  avoiding  a  deed  by  matter  ex  post  facto,        .        .       .        .        ,        399 

SECTION  IV. 
Of  the  construction  op  deeds, .       .       ,       401 

SECTION  V. 
By  what  words  different  estates  are  created, 407 

SECTION  VL 
Of  the  covenants  in  deeds, 411 


CHAPTER  VI. 

Of  the  several  kinds  of  deeds  known  to  the  law,       ,        ,  419 

SECTION  I, 

Of  feoffment,  gift  and  grant,        .        .        .        .        .       .       ,       ,  420 

SECTION  II. 

Of  lease, 423 

SECTION  III. 

Of  exchange  and  partition, 433 

1.  Exchange, 433 

2.  Partition, 435 

SECTION  IV. 

Of  the  derivative  conveyances,  release,  confirmation,  surrender,  as- 
signment AND  defeasance,        436 

1.  Release, 436 

2.  Confirmation, 437 

3.  Surrender, 437 

4.  Assignment, 439 

5.  Defeasance, 440 


TABLE  OF  CONTENTS.  XV 

SECTION  V. 

Of  the  conveyances  which  owe  their  oRiam  to  the  statute  of  uses,     .  440 

1.  Covenant  to  stand  seised,            . 440 

2.  Bargain  and  sale, 441 

3.  Lease  and  release, 443 

4.  Deeds  to  lead  to  uses,     . 444 

5.  Deeds  of  revocation  of  uses, 444 


CHAPTER  VII. 

Or  ALIENATION  OF  REAL  ESTATE  BY  THE  ORDER,  OR    PERMISSION   OP 

SOME    TRIBUNAL    OB   PUBLIC    OFFICER,     ....  445 

1.  Religious  corporations, 445. 

2.  Infants, ^ 446 

3.  Idiots,  lunatics,  &c., 448 

4.  Sale  by  order  of  the  surrogate, 449 

5.  Married  women, 451 

6.  On  mortgage  foreclosure, 454 

7.  Under  judgment  and  execution  by  sheriff,  ....  454 

8.  Tax  sales, ,        .        .  463 


CHAPTER  VIII. 

Of   ALIENATION   OF    REAL    PROPERTY    THROUGH    THE     EXERCISE     OF 

THE   BIGHT   OF   EMINENT   DOMAIN, 464 


CHAPTER  IX. 

Of   THE   ALIENATION   OF   REAL    ESTATE,    BY   DEVISE,  ,  .  .         470 

SECTION  I. 
Of  THE  NATURE  OF  A  DEVISE, 470 

SECTION  II. 

Op  THE  PARTIES  TO  A  DEVISE,  472 

/ 

SECTION  III. 
Of  the  proper  subject,  op  a  devise, 478 

SECTION  IV, 
Op  the  formalities  necessary  to  a  valid  devise,  .       ,        .        ,       481 


XVI 


TABLE  OF  CONTENXS. 


SECTION  V. 

Or  THE  REVOCATXOH  01'  DEVISES,   AXD   OF  EBPDBLIOATION, 

SECTION  VI. 

Of  void  devises  "and  'the  efteot  theeeof,         . 


492 


500 


CHAPTEE  X. 
Of  the  constbuction  op  devises, 504 

SECTION  I. 
Of  the  obnebal  maxims  in  the  oonstruction  of  wins,     s       .       .       504 

SECTION  11. 
Of  the  constettotion  with  beference  to  the  estate,  and  the  PBOP- 

epty  devised,  ajid  the  peeson  of  the  devisee,  .        .  506 

1.  Of  the  estate, 506 

2.  Of  the  property  devised,  509 

3.  Of  the  person  of  the  devisee,     .....♦■..  511 


SECTION  III. 

Of  devises  void    fob    mfOEETAIKTV,     AND    OF    THE    EEMEDY    WHEN    THB 
WILL  IS  OF  DOUBTFUL  CONSTEUCTION, 


514 


SECTION  IV. 

Bt   WHAT  WOEDS    PAETICULAE     ESTATES    AND    CONDITIONS     AEE    OBEATED, 

AND   BY   WHAT   WOEDS   LANDS   AltE   OHAEGED,  ....  519 

SECTION  V. 

Of  EXEOUTOEY  devises,   and  of  the  EESIDUAEY  clause  in  A  WILL,      .  623 


CHAPTER  XL 

Of  abstracts  ;  examination   thereof  ;  searching   fob   incum- 
brances AND   preparing    THE    CONVEYANCE,    AND  AT    WHOSE 

expense, 527 

SECTION  I. 

Of  tub  NATITEE  OF  AN    ABSTRACT,  ..«.»••  527 

SECTION  II. 
Of  seabchino  fob  inoumbeanoeb  against  the  vendob,        •       •  •    .       529 


TABLE  OF  CONTENTS.  xvii 

SECTION  III. 

Of  the  BXAMINATION  of  a  title  derived  by  descent  OB  DEVISE,  .  539 

SECTION  IV. 

Of  the  examination  of  a  title  AOQUIBED    UNDER    A  JTJDIOIAL  SALE,   OE 

SALE  UNDEE  A  POWEE, 539 

SECTION  V. 
Of  the  right  which  a  purohasee  has  to  the  original  deeds,  and  of 

covenants  foe  their  production, 546 

, SECTION  VI. 

Of  THE  FORM,   ARRANGEMENT  AND  SUBSTANCE  OF  THE  ABSTEAOT,      .  .  551 

SECTION  VII. 

Of  THE   PARTY  BY  WHOM  THE  DEED  OE    MORTGAGE    IS    TO    BE    PREPARED, 

AND  AT  WHOSE   EXPENSE 558 


Appendix  of  forms, 563 


Will.— 2 


TABLE  OF  CASES. 


Abbott  V.  Allen,  412,  414,  649. 

"      V.  Massie,  516. 
Abeel  v.  Radcliff,  99,  216. 
Abel  V,  Radcliff,  95. 
Acker  v.  Phoenix,  379. 
Adair  \.  Lott,  58. 
Adams  v.  Emerson,  199. 

"      V.  Rockwell,  406. 

"     V.  Saratoga  and  W.  R.  R.  147,  470. 

"      V.  Winne,  496,  498. 
Addy  V.  Grix,  485. 
Alcock  V.  Sparhawk,  522. 
Albany  Ins.  Co.  v.  Bay,  55,  263,  294,  392. 
Aldeck  V.  Reynolds,  90. 
Allen  V.  Blanchard,  179. 
"     V.  Bryan,  422. 
"     V.  Culver,  415,  428,  429. 
"     V.  DeWitt,  265. 
Altham's  case,  403. 
Amory  v.  Lord,  165,  525. 
Arden  v.  Arden,  248. 
Arnold  v.  Foot,  223. 

"      V.  Patrick,  114. 

"      V.  Stevens,  196. 
Arnot  V.  M'Clure,  137. 

"     V.  Post,  130. 
Arthur  v.  Arthur,  497. 

"      V.  Case,  221. 
Astor  V.  Hoyt,  115,  125. 
"     V.  Miller,  115,  125. 
Atherton  v.  Robins,  500. 
Atkins  V.  Boardman,  198. 
Auburn  and  Cato  Plank  R.  Co.  v.  Dou<Tlass 
201,  202.  °       ' 

Austin  V.  Croome,  547. 
Averill  v.  Loucks,  537. 
Aymar  v.  Bill,  125. 


B 


Babcock  v.  Montgomery  Mat.  Ins.  Co.  210. 
Badgley  v.  Bruce,  74. 


Bagley  v.  Greenleaf,  114. 
Bainbridge  v.  Owen,  127. 
Baker  v.  Thrasher,  109,  111. 

"      V.  Dunning,  484. 
Balmain  v.  Shore,  184. 
Baldwin  v.  Calkins,  222. 
Bancroft  v.  Wardwell,  99,  216. 
Bank  of  Augusta  v.  Ijank  of  U.  S.  200. 

"      of  Columbia  v.  Patterson's  Adm's. 
304. 

"     of  Niagara  v.  Johnson,  102. 

"     of  Utica  V.  Finch,  118,  535. 
Banks  v.  Walker,  319,  321. 

"       V.  Phelan,  518. 

"       V.  Am.  Tract  Society,  219. 
Barheydt  v.  Barlieydt,  508" 
Barry  v.  Merch.  Ex.  Co.  118,  121. 
Barber  v.  Cary,  256,  264. 
Bartless  v.  Harlow,  183. 
Bartlett  v.  Gale,  461. 
Barron  v.  Mayor  of  Baltimore,  465. 
Barton  v.  Croxall,  498. 
Barnes  v.  Crowe,  500. 
Bayard  v.  Hoffman,  292. 
Bayeux  v.  Bayeux,  526. 
Bayles  v.  Attorney  General,  516. 
Bear  v.  Snyder,  63. 
Beardslee  v.  Beardslee,  66. 
Beach  v.  Gray,  215,  216. 

"       V.  Driscoll,  220. 
Beaty  v.  Kurtz,  226. 
Beebe  v.  Griffin,  335. 
Beddoe's  Ex'rs  v.  Wadsworth,  413    414 

417,423,437. 
Beekman  v.  The  People,  502. 

"        V.  Saratoga  and  Schen.  R.  R.  174. 

468.  ' 

Belknap  v.  Trimble,  222. 
Belmont  v.  O'Brien,  284. 
Bempde  v.  Johnstone,  472. 
Benedict  v.  Gilman,  138,  141. 

"        V.  Seymour,  60. 
Bell  V.  The  Mayor  of  N.  Y.  141. 
Bench  v.  Biles,  522,  523. 
Bennett  v.  Jackson,  413. 


XX 


TABLE  OF  CASES. 


Bennett  v.  Smith,  66,  533. 

"       V.  Irvin,  436. 
Berrv  v.  Mut.  Ins.  Co.  115,  120, 122. 
Bergen  v.  Bennett,  252  267. 
Berger  v.  Duff",  645. 
Bingham  v.  Weiderwax,  412,  413. 
Bilhngs  V.  Baker,  60. 
Bishop  V.  Jones,  85. 

"       V.  Bishop,  498,  502. 
Bigelow  V.  Finch.  115,  158. 
Bissell  V.  TheN.  Y.  Central  R.  R.  225. 
Blake's  case,  107,  418. 
Blanchard  v.  Blood,  279. 
"  V.  Nestle,  377. 

Bleaker  v.  Bingham,  294. 

V.  Ballou,  430. 
Bliss  V.  Collins,  210. 
Blood  V.  Goodrich,  268. 

"      V.  Hmnphrey,  258,  391. 
Bloom  V.  Burdick,  131,  450. 
Bloomer  v.  Waldron,  254. 
Blois  V.  Lady  Hertford,  288. 
Bloodgood  V.  The  Mohawk  and  Hudson 

R.  R.  406,  468,  469. 
Bodlne  v.  Edwards,  235. 
Bogardus  v.  Trinity  Church,  207. 

V.  Clark,  471. 
Bogart  V.  Backhatter,  305. 
Botler  V.  DePeyster,  264. 
Boraston's  case,  162. 
Boughton  V.  .lewell,  547. 

"        V.  The  Bank  of  Orleans,  457. 
Bowers  v.  Smith,  503. 
Bowman  v.  Millbanke,  514. 
Bowie's  case,  93. 
Bottsford  V.  Burr,  113,  234. 
Bool  V.  Mix,  140,  291,  435,  446. 
Boyer  v.  Park,  147. 
Boyce  v.  Brown,  195. 
Boyd  V.  M'Lean,  113,  234. 

"     V.  Hoyt,  462. 
Boynton  v.  Hoyt,  280. 
Bradish  v.  Schenck,  90,  424. 
Bradley  v.  Covill,  96. 
Braddick  v.  Thompson,  107. 
Bradbury  v.  Wright,  207. 
Bradstreet  v.  Clarke,  356,  390,  439,  505. 
Bradhurst  v.  Bradhurst,  504,  505. 
Bradley  v.  Amidon,  505. 
Braker  v.  Devereux,  186. 
Brant  v.  Gelston,  166. 

"      V.  Wilson,  496. 
Brewster  v.  Kidgell,  205. 

"         V.  Powers,  235,  467,  532. 
"  V.  Striker,  366. 

Brings  V.  Dorr,  439. 
Briukerhotr  V.  Marvin,  118. 

V.  Ransom,  486,  490. 
"  V.  Thalimer,  146. 

"  V.  Wimi)le,  184. 

Brockway  v.  Wells,  112. 
Bront  V.  Becker,  199. 
Brown  v.  Dean,  111,  398, 

♦'       V.  Huff,  543. 


Brownell  v.  Brownell,  181,  509. 
Brown  v.  Wilber,  242. 

"       V.  Betts,  217. 

"      V.  Brown,  376,  496. 

"      V.  Sprague,  320. 

"      V.  Burlingham,  333,  335. 
Broome  v.  Monck,  863. 
Brudeuell  v.  Boughton,  522,  523. 
Brumsnell  v.  M'Plierson,  107. 
Bruen  v.  Hone,  364. 
Bryan  v.  Knickerbacker,  440. 
Buchan  v.  Sumner,  152,  531. 
Buell  V.  The  Trustees  of  Lockport,  470. 
Buffalo  et  al.  R.  R.  Co.  v,  Brainard  et  al, 

467. 
Bull  V.  Church,  68. 
Buncev.  Reid,  134,  135,  137, 
Bunter  v.  Coke,  478. 
Burch  V.  Wilkins,  493,  494. 
Burden  v.  Thayer,  175. 
Burhans  v.  Burhans,  360. 
Burt  V.  Sternberg,  364. 
Butt's  case,  82. 
Bush  V.  Davison,  464,  540. 
Butts  V.  Genung,  340. 
Burnet  v.  Denniston,  132,  139. 
Butcher  v.  Butcher,  267. 
Butler  V.  Butler,  505. 

"       V.  Remsen,  485,  489. 
Byrne  v.  Hoesen,  433. 


c 


Calkins  v.  Long,  243. 
Cameron  v.  Ervin,  139. 
Campbell  v.  Macomb,  145. 
V.  Logan,  489. 
"         V.  Lewis,  416. 
Canfield  v.  Munger,  439. 
Canal  Com.  v.  The  People,  207,  220. 
Carborne  v.  Scarfe,  144. 
Carhart  v.  The  Auburn  Gas  Light  Co.  220. 
Carpenter  v.  Schermerhorn,  359,  360. 

"        V.  Brown,  560. 561. 
Carson  v.  Murray,  64. 
Carver  v.  Jackson.  367,  384,  444. 
Casev.  Haight,  221. 
Callin  V.  Jackson,  457. 
Caswell  V.  Districh,  90, 184,  424. 
Caulkins  v.  Harris,  413. 
Chaffee  v.  The  Baptist  Miss.  Soc,  485. 
Chautauque  Co.  Bank,  v.  Risley,  366. 
Chalker  v.  Chalker,  108. 
Champion  v.  Brown,  115, 
Chapman  v.  Brown,  513. 
Champliu  v.  Baldwin,  334. 
"        V.  Lay  ton,  557. 
V.  Parish,  268. 
Charles  River  Bridge  v.  Warren  Bridge, 

201,464. 
Chester  v.  Bank  of  Kingston,  113. 
Child  V.  Chappel,  368. 

"     V.  Starr,  220,  221. 


TABLE  OF  CASES. 


XS.I 


Childs  V.  Clark,  431. 

Chipraan  v.  Martin,  218. 

Cholmonrleley  v.  Clinton,  361. 

Chudleio;h's  case,  164,  230. 

Chrystie  v.  Phyfe,  502. 

Church  V.  Bull,  69. 

City  of  Cincinnati  v.  Lessees  of  White,  224, 

227. 
Clark  V.  Clark,  60. 

"      V.  Dakiu,  153. 

"      V.  Graham,  472. 

"      V.  Hall,  114. 

"     V.  Henry,  112. 

"      V.  Jones,  431, 

"     V.  Nixon,  389,  397,  548. 

"      v.  Rowling,  304. 

"      V.  Underwood,  448. 
Capp  V.  Bramaghan,  357. 
Classen  v.  Bailey,  380. 
Clavering  v.  Clavering,  78.  * 

Clayton  v.  Lord  Nugent,  516. 
Clements  v.  The  Village  of  West  Troy,  225. 
Cleves  V.  Willoughby,  100,  216,  216,  217, 

427. 
Clift  V.  White,  247. 
Clowes  V.  Dickinson,  146. 
Clute  V.  Robinson,  543. 
Coates  V.  Cheever,  63,  73,  74,  78. 
Codington  v.  Bay,  122. 
Coe  V.  Irvine,  360. 
Coffin  V.  Coojjer,  543. 
Cohen  v.  Dupont,  200. 
Cohoes  Co.  V.  Goss,  137. 
Cole  V.  Moffit,  184. 

"    V.  Patterson,  211. 
ColegVove  v.  Cantos,  86. 
Coleman  v.  Wade,  304. 
Coles  V.  Coles,  64,  116,  125,  144,  184,  537. 
Colvin  V.  Baker,  456. 

"       V.  Burnett,  350. 
Collins  V.  Torry,  64,  144. 
Commercial  Bank  v.  Cunningham,  118. 
Com'rs  V.  Cliase,  132. 
Conkey  v.  Hart,  91. 
Connelly  v.  Pierce,  560. 
Conolly  V.  Pardon,  517. 
Conklin  v.  Edgerton,  645. 
Conway  v.  Starkweather,  97. 
Cook  V.  Champlain  Tr.  Co.  84. 

"     V.  Derchenfleld,  268. 

"     V.  Easton,  112. 
Coolidge  V.  Learned,  35. 
Cooper  V.  Emery,  375. 
V.  Hill,  111. 

"        V.  Whitney,  65,  74,  109,  308. 
Cornell  v.  Lamb,  204,  218. 
Corning  v.  Gould,  349,  350. 
Corporation  of  N.  Y.  v.  Cushmaa,  430. 
Corwin  v.  Merrill,  450. 
Cowes  V.  Hawley.  184. 
Cowie  V.  Goodwin,  217. 
Cox  V.  AVheeler,  1.35. 
Crafts  V.  Aspinwall,  116. 
Craig  V.  Craig,  254. 


Craig  V.  Leslie,  287. 

Crary  v.  Goodman,  118. 

Cregier,  matter  of  58,  63. 

Cresson  v.  Stout,  88,  317. 

Crippin  v.  Hudson,  153. 

Croswell  v.  Craine,  100,  215.    , 

Col  ton  V.  Ross,  471. 

Coster  V.  Lorillard,  281,  282,  508,  525. 

Cotten  V.  Lyer,  495. 

Coltrel  V.  Watkins,  550. 

Coutant  V.  Servoss,  254,  263. 

Covenhoven  v.  Shuler,  504,  605. 

Cromer  v.  Pickney,  504,  505,  512. 

Crowderv.  Hopkins,  390. 

Crozier  v.  Arer,  154.  • 

Crosby  v.  Wendell,  504. 

Cruger  v.  Cruger,  294. 

"       V.  Halliday,  246. 
Culver  V.  Haslam,  388. 
Cunningham  v.  Freeborn,  375,  378. 
V.  Knight,  124. 
"  V.  Smith,  64. 

Curtiss  v.Leavitt,  200. 
Cushney  v.  Henry,  233. 

D 

Dakin  v.  Hudson,  450. 

V.  Livingston,  184,  218. 

"       V.  Williams,  107. 
Dan  V.  Brown,  492. 
Darling  v.  Rogers,  243,  526. 
Dartmouth  College  v.  Woodward,  200. 
Davis  V.  Earl  of  Strattsmore,  152. 

"      V.  Darrow,  367. 

"      V.  Shield,  380,  483. 

"      V.  Tyler,  369. 
Day  V.  Betts,  242, 
"     V.  Dunham,  398, 
"     V.  Roth,  285. 
Dean,  ex  parte,  81. 
De  Baranto  v.  Gott,  287. 
De  Couche  v.  Savitier,  248,  286. 
De  Graw  v.  Classon,  243. 
De  Kay  v.  Irvin,  526. 
De  Lancey  v.  Ganong,  427. 
Delaplain  v.  Hitchcock,  142. 
Demarest  v.  Willard,  175,  416,  422,  439, 
481. 
"        V.  Wynkoop,  139. 
Demott  V.  Haaaman,  184. 
Dempsey  v.  Tvlee,  389. 

V.  Tyler,  251,  265. 
Dennis  v.  Tarfjenny,  390. 
Dennisou  v.  Ely,  366. 
Denton  v.  Jackson,  378. 
De  Peyster  v.  Ferris,  245. 

V.  Michael,  43,  51,  55,  103, 

165,  173,  207,  208,  370,  431. 
Derby  Canal  Co.  v.  Wilmot,  384. 
Devisees  of  Van  Rensselaer  v.  Executors 

of  Platner,  205. 
DeWitt  V.  Bailey,  388. 
Dezell  V.  Odell,  368. 


XXll 


TABLE  OF  CASES. 


Dezeng  v.  Beekraan,  384. 
Dey  V.  Dunham,  112. 
Dickinson  V.  Dickinson,  483, 
"         V.  Gilliland,  460. 
"        V.  Jackson,  126. 
"         V.  Smith,  153. 
Dickersonv.  Tillinghast,  122. 
Dimmick  v.  Lockwood,  413,  549. 
Dispard  v.  Walbridge,  113,  368. 
Dobson  V.  Pearce,  113. 
Doe  V.  Archbishop  of  York,  400. 

"     V.  Banks,  108. 

"     V.  Bell,  216. 

"     V.  Carter,  104. 

"     v..Fleminff,  541. 

'•     V.  Hiscocks,  517. 

"     V.  Howland,  182. 

"     V.  Jesson,  360. 

"     V.  Morgan,  523. 

"     V.  Nichols,  245. 

"     V.  Over,  513. 

"     V.  Parrott,  180. 

"     V.  Pratt,  522. 

"     V.  Purdett,  488. 

"     V.  Robertson,  478. 

"     V.  Roe,  485,  490,  509. 

"     V.  Sandham,  427. 

"     v.  Simpson,  245. 

"     V.  Staples,  494. 

"     V,  Thompson  358,  405. 

"     v.  Wilder,  196. 
Dolf  V.  Basset.  73. 
Doltish  V.  White,  416. 
Dominick  v.  Sayre,  260. 
Donaldson  v.  O'Connor,  151. 
Doolittle  V.  Lewis,  252,  268. 
Dorland  v.  Dorland,  253. 
Dover  v.  Gregory,  522. 
Drurv's  case.  401. 
Dumfrey  v.  Tyler,  251,  548. 
Dunipor's  case,  107. 
Dyckman  v.  Mayor  of  N.  Y.  470. 
Dyett  v.  Pendleton,  209. 
Dygert  v.  Pletts,  404. 

E 

East  V.  Wilson,  473. 
Eaton  v.  Green,  440. 
Eckford's  Exts  v.  De  Kay,  111. 
Edwards  v.  Farmers'  Fire  Ins.  Co.  127. 
"         V.  Farmers'  L.  and  T.  Co.,  130. 
Egerton  v.  Conklin,  203. 
Elliott  v.  Pele,  112. 
Ellis  V.  Duncan,  220. 

"     V.  Messerole,  113. 

"     V.  Touseley,  151. 
Ellison  V.  Miller,  479,  497. 
Elsey  V.  Metcalf,  384. 
Elwes  V.  Maw,  83,  84,  86,  88,  317. 
Ehvood  V.  Klock,  392. 
Emerson  v.  Wiley,  196. 
Enfield  Toll  Bridge  Co.  v.  The  Hartford  and 

N.  H.  R.  R.  202. 


Ennis  v.  Smith,  472. 
Ensign  v.  Colburn,  127. 
Enthovens  v.  Hoyle,  203. 
Erwin  v.  Olmstead,  188. 
Evans  v.  Ellis,  113. 
Evertson  v.  Evertson,  113. 
"         V.  Sawyer,  95. 

V.  Sutton,  217.      • 
Every  v.  Merwin,  400. 
Eyles  V.  Cary,  522. 

F 

Fairbanks  v.  Williamson,  416. 

V.  Wood,  247. 
Fairfax  v.  Hunter,  478. 
Falkner  v.  Butler,  512. 
Farley  v.  Craig,  211. 

Farmers'  Loan  and  T.  Co.  v.  Hendrickson, 
148. 
"        and  Mechanics  Bank  y.  Haight, 

383. 
"        and  M.  Bank  of  Kent    Co.,  v. 
Butchers  and  Drovers  Bank,  244. 
Faure  v.  Winans,  128. 
Fay  v.  Brewer,  79. 

Featherstonhaugh  v.  Bradshaw,  100,  216, 
Ferguson  v.  Broom,  341. 

"        V.  Ferguson,  136,  141, 143. 
V.  Kimball,  136,  141. 
Ferris  v.  Brown,  347. 
Field  V.  Shieffelin,  433. 
Fish  V.  Hubbard's  Adm'rs.  402. 
Fisher  V.  Fields,  231,  244. 
Fitch  V.  Baldwin,  415. 
Flagg  V.  Jlann,  440. 
Foote  V.  Colvin,  234. 
Ford  V.  Stewart,  439. 
Fort  V.  Burch,  121. 
Fowler  v.  Botts,  83. 

"         V.  Poling,  413. 
Franklin  v,  Osgood,  270. 
Frazerv.  Western,  289. 
V.  Weston,  255. 
Freelandv.  Southworth,  87. 
Freeman  street,  matter  of,  224. 
Fremont  v.  United  States,  106,  408. 
French  v.  Carhart,  403. 
Frier  v.  Van  Allen,  404. 
Frost  V.  Beekman,  385,  399. 

"     V.  Raymond,  411. 
Fuller  V.  Hubbard,  561. 

a 

Gage  V.  Acton,  808. 
"     V.  Gage,  486. 
Gales  V.  Henry,  118. 
Gardner  v.  Adams,  302. 
"        V.  Buckbee,  364. 
"        V.  Dering,  76. 
V.  Heartt,  126. 
"       V.  Heyer,  475,  611. 


TABLE  OF  CASES. 


xxui 


Gardner  v.  Trustees  of  Newbiirgh,  220. 
Garfield  v.  Hatmaker,  236,  632. 
Garlick  v.  Strong,  293. 
Garlock  v.  Class,  417. 
Garret  v.  Scouter,  431. 
Garson  v.  Green,  114. 
Gates  V.  Green,  216. 
Gayetta  v.  Bethune,  350. 
Gedney  v.  Earl,  192. 
Gere  v.  Clark,  419.     * 
Germond  v.  Jones,  65,  244. 
Getman  v.  Getman,  236. 
Gibbs  V.  Tart,  515, 
Gibson  v.  Cold,  270. 
Gififord  V.  Livingston,  200. 
Gilchrist  v.  Cunningham,  112. 
Gillet  V.  Balcolra,  90. 
"     V.  Moody,  200. 

"     V.  Stanley,  182,  277,  291,  446,  540, 
565. 
Gillis  V.  Brown, '62. 
Globe  Ins.  Co.  v.  Lansing,  141. 
Godfrey  v.  Watson,  128. 
Goodeli  V.  Jackson,  44. 
Goodrich  v.  Jones,  85. 

"  V.  Pendleton.  248. 

«'         V.  Walker,  385. 
Gordon  v.  Graham.  117. 
Gott  V.  Cook,  282,  28 i,  287,  525. 
Gould  V.  Glass,  225. 
Gowld  V.  Tancred,  128. 
Graff  V.  Kipp,  529. 
Graves  v.  Bo. den,  210. 
Green  v.  Miller,  270. 

"      V.  Putnam,  62,  73,  127,  188,  386. 
"      V.  Skii)worth;  483. 
Greenly  v.  Wilcox,  412,  413,  549. 
Greenleaf  v.  Francis,  220. 
Griffin  v.  Martin,  192, 193. 

"       V.  Spencer,  115,  457,  532. 
Griffith  V.  Griffith,  557. 
Groff  V.  Jones,  458. 
Grosvenor  v.  Allen,  115. 

"  V.  Lynch,  146. 

Grout  V.  Townsend,  76. 
Grover  v.  Wilson,  100. 
Guild  V.  Peck,  294. 
Guion  V.  Knapp,  146. 

H 

Hackett  v.  Hudson,  561. 
Hadley  v.  Chapin,  307. 
Hall  V.  Ballentine,  95. 
Hall  V.  Dunch,  495. 
"     V.  Fisher,  460. 
Hallady  v.  March,  192.     ' 
Hallet,  matter  of,  504. 
Hallett  v.  Thompson,  244. 
Hallet  v.  Wylie,  83,  411,  424,  427. 
HallenbackV.  Garver,  217. 
Hallock  V.  Smith,  114. 
Halsey  v.  Reed,  146. 


Hamilton  v.  Wliite,  194. 

V.  Wilson,  412,  413. 
Hanna  v.  Osborn,  184,  333. 
Hardacre  v.  Ntish,  511. 
Hardenburgh  v.  Lockwood,  192. 
Harrington  v.  Budd,  498. 
Harris  v.  Clark,  280. 
"       V.  Fly,  522. 
"      V.  Ingledew,  522. 
"      V.  Norton,  122. 
Harrison  v.  Elwin,  489. 
Hart  v.  Chalker,  118. 
"     v.  Ten  Evck,  143. 
"     V.  Vose,  350. 
Hasbrouck  v.  Weaver,  291. 
Hassel  v.  Hassel,  522. 
Hatch  V.  White,  141. 
Havens  v.  Foster,  500. 

"        V.  Vanderburgh,  494. 
Hawkins  v.  Kemp,  253. 
Hawley  v.  Bradford,  64. 

"       V.  James,  69,  71,  281,  282,  366, 

525,  526. 
"       V.  Ross,  245,  480. 
Hays  V.  Hall,  544. 
Haywood  v.  Judson,  181. 
'<  V.  Miller,  424. 

Heard  v.  Horton,  513. 
Henderson  v.  Eason,  188. 
Henry  v.  Bishop,  387,  490. 
Henvell  v.  Whitaker,  522. 
Herlakender's  case,  84. 
Herrick  v.  Mallin,  401. 
"       V.  Stover,  199. 
Heyer  v.  Pruyn,  145. 
Hevward  v.  Mayor  of  N.  Y.  468,  469.  ^ 
Hill  V.  The  Board  of  Supervisors  of  Liv'n 

Co.,  378. 
Hitchcock  V.  Carpenter,  867. 

V.  Harrington,  64,  116, 125,  537, 
367. 
Hodges  V.  The  Tennessee  M.  and  T.  Ins. 

Co.,  113. 
Hodgson  V.  Ambrose,  505. 
Hoey  V.  Renney,  260. 
Hoffman  v.  Savage,  196, 
Holden  v.  Gilbert,  135. 
Hollenbeck  v.  Fleming,  387,  388,  490. 
Holliday  v.  Marshall,  430. 
Holmes  v.  Grant,  111. 
"       V.  Remsen,  471. 
"       V.  Seeley,  433,  194,  195. 
"        V.  Tremper,  84,  317. 
Hone  V.  Fisher,  412. 

"     T.  Van  Schaick,  281,  512,  504. 
Hooper  ex  parte,  119. 
House  V.  House,  87,  89,  481. 
Howe,  matter  of,  531. 
Howard  v.  The  Union  Theo.  Sem.,  491. 
How  land  V.        "  "  626. 

Hoxie  V.  Hoxie,  233. 
Hoyt  V.  Carter,  349. 
Hubbard  v.  Elmer,  254. 
"       V.  Savage,  118. 


X21V 


TABLE  OF  CASES. 


Hudson  V.  Jewett,  561. 
Hughs  V.  Edward,  142. 

V.  Winne,  542. 
Humbert  v.  Trinity  Church,  248,  355,  357, 

361. 
Humphry  v.  Phinney,  72. 
Hunter  v.  Trustees  of  Sandy  Hill,  226. 
Huntington  v.  Havens,  367,  404. 
Hyatt  V.  Wood,  313. 


Ingersoll  v.  Sargeant,  211. 
Ingrahamv.  Hutchinson,  350. 

V.  Baldwin,  368. 
Irving  V.  De  Kay,  524. 
Ives  V,  Davenpoft,  254. 
Izoa  V.  Gorton,  210. 


Jackson 

V.  Aldrich,  94,  95. 

ti 

V.  Alexander,  442. 

(( 

v.  Allen,  101,  108,425. 

(( 

V.  Anderson,  458. 

i( 

V.  Andrews,  356. 

iC 

V,  Ashton.  544. 

II 

V.  Austin,  124. 

l< 

V.  Babcock,  506. 

II 

V.  Bard,  388. 

II 

V.  Bartlett,  461,  462. 

II 

V.  Beach,  401. 

<( 

V.  Blodgett,  401. 

11 

V.  Budle,  375. 

II 

V.  Bradt,  94,  95,  96,  435. 

It 

V.  Britton,  357. 

l( 

V.  Brortson,  125. 

(I 

V.  Brown,  513. 

II 

V.  Brownell,  90. 

II 

V.  Brownson,  77,  104,  431. 

II 

V.  Bryan,  94. 

II 

V.  Cairns,  392. 

II 

V.  Caldwell,  441. 

11 

V.  Camp,  354,  383,  405, 

II 

V.  Cary,  442. 

II 

V.  Chapin,  151, 

II 

V.  Churchill,  600. 

II 

V.  Clark,  404. 

II 

V.  Colden,  120. 

II 

V.  Collins,  208.                  •* 

II 

V.  Corey,  382. 

II 

V.  Corless,  104, 

II 

V.  Corry,  377. 

II 

V.  Croy,  357. 

(1 

V.  Crysler,  107,  108. 

(1 

V.  Davenport,  407. 

II 

V.  Davis,  129,  357. 

(1 

V.  Deifendorff,  405,  406. 

II 

V.  Delany,  264,  441. 

1. 

V.  De  Lancey,  404,  462,  506 

II 

v.  Demont,  JBfiO. 

<l 

V.  De  Watts,  357,  433. 

fl 

V.  De  Witt,  62. 

Jackson  v.  Dickerson,  90,  460. 

"  V.  Dubois,  124. 

"  V.  Dunsbagh,  403. 

"  V.  Edwards,  255,  258,  259,  289 

V.  Estv,  464. 

"  V.  Felier,  234. 

"  V.  Fish,  423,  437,  442. 

"  V.  Fitzsimmons,  319.    . 

"  V.  Fleet,  231.. 

"  V.  Florence,  441. 

"  V.  Frost,  356,  405. 

"  V.  Gilchrist,  58,  59. 

"  V,  Gould,  123,  394. 

"  V,  Graham,  116,  456. 

"  V.  Halloway.  493. 

"  V.  Halstead,  222,  355, 405. 

"  V.  Harden,  435. 

"  V.  Harrison,  104. 

"  V.  Harrow,  394. 

"  V.  Harsen,  357. 

"  V.  Hart,  43. 

"  V.  Hathaway,  192,  221,  405. 

"  V.  Hendricks,  324. 

"  V,  Hile,  356. 

"  V.  Hilton,  324. 

"  V.  Hopkins,  90. 

"  V.  Howard,  507. 

"  V.  Howe,  439. 

"  V.  Hudson,  403.    ■ 

"  V.  Ireland,  366.  ' 

"  V.  Ives,  405. 

"  V,  Jackson,  345. 

"  V.  Johnson,  58,  356,  360,  439, 

"  V.  King,  377. 

"  V.  Kipp,  105. 

"  V.  Livingston,  404,  435. 

"  V.  Louw,  405. 

"  V.  Luquere,  435. 

"  V.  Mancius,  58,  76. 

"  V.  McCall,  406. 

"  V.  McChesney,  121. 

"  V.  McConnell,  405. 

"  V.  McKinney,  442. 

"  V.  McLeod,  96. 

"  V.  Merrill,  506.         , 

V.  Mills,  234. 

"  V.  Moore,  184. 

"  V.  Morse,  234,  546. 

"  V.  Motsford,  234. 

"  V.  Myers,  401,  407,  442. 

"  V.  Newton.  356. 

"  V.  O'Donaghy,  183. 

V.  Oltz,  360. 

V.  Osborn.  123,  394,  401. 

"  V.  Page,  461. 

"  V.  Parker,  115,  466. 

"  V.  Parkhurst,  98,  114,  366,  404 

"  V.  Peck,  379. 

"  V.  Phillips,  387. 

"  V.  Phipps,  114,  376. 

"  V.  Pike,  441. 

'•  V.  Post,  379. 

"  V.  Potter,  499. 

"  T.  Ramsay,  460. 


TABLE  OF  CASES. 


XXT 


Jackson  v.  Reynolds,  357. 

"        V.  Rhodes,  131. 

••        V.  Richards,  354, 

y.  Robinson,  312,  343. 

"        V.  Rogers,  94. 

"        V.  Root,  442. 

"        V.  Rosevelt,  404. 

"        V.  Rowland,  368,  385,  386. 

"        V.  Rumsey,  550. 

"         V.  Salmon,  96. 

"        V.  Scissaui,  357. 

"     •  V.  Schoonmaker,  358,  360,   387, 
389. 

"        V.  Sebring,  441.  , 

"        V.  Sellick,  58,  59,  489. 

"        V.  Sharp,  352. 

•'        V.  Shepard,  464. 

"        V.  Shultz,  207. 

"        V.  Sill,  609. 

"        V,  Silvernail,  104, 105. 

"         V.  Sternbergh,  234. 

"        V.  Stevens,  180,  182,  392. 

•'        V.  Stewart,  357. 

"         V.  Streeter,  461. 

"        V.  Tibbits,  402. 

"        V.  Timmerraan,  379. 

"        V.  Thomas,  352. 

"        V.  Thompson.  366. 

"        V.  Thurman,  333. 

"        V.  Topping,  103. 

"        V.  Turner,"  136. 

"        V.  Vanderheyden,  277. 

"        V.  Van  Dusen,  484,  485,  489. 

"        V.  Van  Valkenburgh,  121,  398. 

"         V.  Verden,  253. 

"        V.  Vickory,  394. 

"        V.  Vosburgh,  357,  435. 

"        V.  Warford,  356. 

"        V.  Wells,  507. 

"         V.  Wendell,  405. 

"        V.  West,  395,  548. 

"        V.  Wheat,  356. 

"        V.  Whitford,  357. 

"'       V.  Widger,  406. 

"        V.  Wilkison,  405. 

"        V.  Wilson,  367. 

"        V.  Wood,  406. 

"        Woodruff,  354,  389. 
James  v.  Johnson,  112,  118,  247. 

"      V.  Mowrey,  113,  247,  301,  302,  803, 

308,  309,  398. 
"      V.  Stull,  134. 
Jaques  v.  Meth.  Epis.  Church,  273,  282. 
Jauncey  v.  Thorn,  491. 
Jenkins  v.  Van  Schaick,  301. 
Jenks  V.  Alexander,  135. 
Jennings,  ex  parte,  221,  405. 
Jerome  v.  Ross,  469. 
Johnson  v.  Bush,  393. 

"        V.  Corbett,  481. 

"        V.  Fitzhugh,  153. 

"        V.  Fleet,  232. 

"        V.  Mcintosh,  43. 

"        V.  Stagg,  120.  I 


Jones  V.  Butler,  291, 
Jones,  matter  of.  447. 

"     V.  Phelps,  129.  ♦• 

Jubber  v.  Jubber,  502,  515. 
Jumel  V.  Jumel,  146. 

K 

Kane  v.  Gott,  285. 

"     V.  Sanger,  417. 
Kay  V.  Irving,  505. 

"       V.  Waghorn,  418.  » 

Kearney  v.  Post,  431. 
Keeney  v.  Whitmarsh,  485. 
Kelleran  v.  Brown,  440. 
Kellogg  V.  Slauson,  266. 

"        V.  Wood,  461. 
Kelly  V.  The  Dutch  Church,  413,  414 
Kennedy  v.  Gardner,  861. 

"        V.  Greene,  559. 

"        V.  Mills,  69. 

"        V.Wood,  319. 
Kentish  v.  Kentish,  522. 
Kerr  v.  Devisees  of  Moon,  472. 
Kersted  v.  Avery,  531. 
Kidd  V.  Dennison,  78. 
Kidney  v.  Cousmaker,  523. 
King  v.  Rundle,  475. 
"     V.  Stow,  132. 
"     V.  Strong,  518. 
Kingsland  v.  Rapelye,  513. 

"  V.  Spalding,  364. 

Kinnev,  v.  Watts,  412,  430. 
Kleek  v.  The  Reformed  Dutch  Church,  503, 
Klock  V.  Cronkhite,  135. 
Knapp  V.  Alvord,  252,  267. 
Knight  v.  Weatherwax,  233,  497. 
Knowles  v.  McCamley,  392. 
Kouts  v.  Carpenter,  414, 


Lady  Superior  v,  McNamara,  385, 

Lake  v.  King,  90, 

L'Amoreux  v.  Van  Rensselaer,  243,  283, 

Lamerson  v.  Marvin,  137. 

Laurette  v.  Anderson,  429. 

Langdon  v.  Astor's  Executors,  495,  500. 

Langford  v.  Pitt,  543. 

Lansing  v.  Godlet,  141, 

"        V.  matter  of,  448. 

"        V,  Montgomery,  369. 

"        V.  Paine,  301,  309. 

"        V.  Price,  92. 

"        V.  Rattoon,  214. 

V.  Russell,  112,  382,  388. 

"        V.  Vischer,  154. 

"        V.  Wiswall,  194. 

"        V.  Woodward,  118. 
Lansingburgh,  Bank  of,  v.  Crary,  90. 
Larker  v.  Larker,  69, 
Larkin  v.  Mann,  187. 
Lathrop  v.  Ferguson,  459, 


ZXYl 


TABLE  OF  CASES. 


Lawrence  v.  Hunt,  365. 

"        V.  Taylor,  268. 

"        V.  The  Farmers'  L.  and  T.  Co., 
136. 
Lawton  v.  Salmon,  85. 
Layman  v.  Abiel,  189,  325, 
Leavitt  v.  Blatchford,  200. 

"       V.  Pell,  290. 
Le  Breton  v.  Miles,  286. 
Ledyard  v.  Butler,  124. 
Leeds  v.  Cameron,  118. 
Leggett  V.  Perkins,  229,  244,  282. 
Leland  v.  Bennett,  464,  646. 
Leonard  v.  Morris,  135,  143. 

V.  Steele,  69. 
Le  Hay  DeChaumont  v.  Forsythe,  416. 
Le  Roy  v.  Piatt,  89. 
Levick  v.  Sears,  369. 
Lewis  V.  Darling,  523. 
"      V.  Lewis,  485,  486. 
"      V.  Payn,  209,  218,  400,  425. 
Lewis  street,  matter  of,  224. 
Livingston  v.  Dean,  113. 

"  V.  Ketchum,  191. 

"  V.  Livingston,  234. 

"  V.  Mclniav,  117. 

"  V.  Potter,  91. 

"         V,  Proseus,  861. 

^'         V.  Reynolds,  78,  79. 

"         V.  Tanner,  95,  96,  98,  99. 

"         V.  Tenbrook,  191,  403. 

"  V.  Tbe  Mayor  of  N.  Y.  224,  466. 

"         V.  The  Peru  Iron  Co.,  356. 
Little  V.  Harvey,  154,  529. 
London  and  Greenwich  Railway  Co.,  mat- 
ter of,  558. 
Loonie  v.  Hagan,  150. 
Loomis  V.  Wilber,  79. 
Lord  Compton  v.  Oxenden,  303. 
Lord  Cromwell's  case,  101. 
Lord  Stafford's  case,  158. 
Lorillard  v.  Coster,  526. 

"       V.  The  Town  of  Mbnroe,  378. 
Loundsbury  v,  Purdy,  234. 
Lovet  V.  The  Steam  Saw  Mill  Ass.  393. 
Lowns  V.  Remsen,  534. 
Luce  V.  Carley,  221,  405. 
Lupton  v.  Lupton,  521,  622,  526. 
Lyle  V.  Discomb,  118. 
Lynch  v.  Mut.  Ins.  Co.  115. 
Lynch  v.  Livingston,  399,  437. 
Lyon  V.  Smith,  489. 

M 

Mackay  v.  Bloodgood,  383. 
Mahan  v.  Brown,  218,  219. 
Manhattan  Co.  v.  Evertson,  154,  530. 
Maun  V.  Mann,  234. 

"      V.  Pearson,  405. 
Mancey  v.  Harris,  364. 
Marks  V.  Pell,  112. 
Markland  y.  Crump,  416, 


Marsellis  v.  Thalhimer,  59. 
Marshall  v.  Peters,  222. 
Martin  v.  Gage,  341. 

v.  Waddell,  43. 
Marvin  v.  Vedder,  533. 
Mary  Partington's  case,  102.     ■ 
Mason  v.  Jones.  505. 

"       v.  Robinson,  514. 
Matter  of  Stevenson,  245. 

"      of  The  Mechanic's  Bank,  247. 

"      of  Van  Schoonhoven,  245. 
"      of  Van  Wyck,  245, 246. 
Maybee  v.  Avery,  364. 
Mayor  v.  Corliss,  427. 
Mayor  of  Troy  v.  The  Mutual  Bank,  464. 
McCartee  v.  Teller,  66,  288. 
McCarthy  v.  Hudson,  209. 
McCarthy  v.  Marsh,  319. 
McConnel  v.  The  Trustees  of  Lexington. 

226. 
McCormic  v.  Sullivan,  471. ' 
McCrese,  lessee,  v.  Somerville,  319. 
McDermot  v.  Palmer,  150. 
McGregor  v.  Comstock,  326,  333. 
McKercher  v.  Hawley  90. 
McKinstry  v.  Mervin,  144. ' 
McLean  v.  McDonald,  506. 

"        V.  Swanton,  319. 
McMahon  v.  Burchell,  188. 
McRae  v.  McRae,  338. 
McWhorter  v.  McMahon,  268,  276. 
Mead  v.  Gregg,  115,  236. 
Meakings  v.  Cromwell,  261. 
Melvin  v.  Whiting,  350. 
Merest  v.  James,  513. 
Merriam  v.  Harsen,  391. 
Merrill  v.  Emery,  109. 
Merritt  v.  Brinkerhoff,  222. 

"       V.  Classon,  380. 
Merry  v.  Hallet  456. 
Mersereau  v.  Norton,  185. 

"         V.  Pearsall,  865. 
Meserole  v.  Mayor  of  Brooklyn,  466. 
Meth.  Epis.  Church  v.  Jaques,  291. 
Mickles  v.  The  Rochester  City  Bank,  149. 
Middlebrook  v.  Corwin,  83,  85. 
Miles  v.  Bovden,  500. 
Miller  v.  Hull,  136. 

"       v.  Parsons,  417. 

"      v.  Plumb,  83. 

"      V.  Travis,  516. 
Mills  V.  Dennis.  141. 

"     V.  Hall,  347. 
Millspaugh  v.  McBride,  304. 
Minturn  v.  Seymour,  879. 
Mitchell  V.  Blair,  474,  498. 
"        matter  of,  492. 
V.  Walker,  350. 
"         V.  Warner.  414. 
Mitler  v.  Mainwaring,  400. 
Moffat  V.  Smith,  422. 
Mohawk  Bridge  Co.  v.  The  Utica  and  S. 

R.  R.  Co.  201,  202. 
Mohun  V.  Mohun,  615. 


TABLE  OF  CASES. 


MoUan  v.  Griffiths,  481. 
Morrell  v.  Smith,  118. 
Moodie  v.  Reid,  488. 
Mooers  v.  Waite,  85. 

V.White,  341,  342,  343,  499. 
Moore    v.  Cahle,  128. 
"         V.  Jackson,  360. 
"         V.  Rawson,  1'.'6. 
Morgan,  matter  of,  448. 

"       V.  Plumb,  142. 
Morris  v.  Keves,  397,  549,  550. 
V.  Miller,  541. 
V.  Mowatt,  117,  125,  339. 
"         V.  Wadsworth,  549. 
"         V.  Whitcher,  306. 
Moseley  v.  Praaiiall,  220. 
Moss  V.  Rossie  Lead  M.  Co.  46. 
Mott  V.  Palmer,  47,  84. 
Mowatt  V.  Carrow,  512. 
Mowry  v.  Bishop,  147. 
Mover  V.  Hinman,  115. 
Muir  V.  Leitch,  153,  529,  532. 

"     V.  The  Trustees  of  Orphan  As.  471. 
Mumford  v.  Brower,  184,  217. 
"         V.  Brown,  188,  427. 
Munroe  v.  Alair,  403. 

"       V.  Douglass,  472. 
Munson  v.  Hungerford,  226,  348,  349. 
Murray  v.  Ballou,  244. 

"         V.  Livingston,  113. 
Myers  v.  Eddy,  505,  511,  523. 


N 


Neilson  v.  Neilson,  458,  510. 
Nellis  V.  Lathrop,  218. 
Nelson  v.  McEffert,  491,  492,  498. 
Newcomb  v.  Agan,  185. 
Newburgh  Turnpike  v.  Miller,  201. 
Newkirk  v.  Newkirk,  506. 
Newman  v.  .Johnson,  522. 
New  York  Fireman's  Ins.  Co.  v.  Ely,  101. 
"  Life  and  Trust  Co.  v.  Milnor, 

147,  194,  195. 
"  "        "  "        V.    Smith, 

122,  538. 
Nichols  V.  Bailev,  175. 
"       V.  Chapman,  532. 
"       V.  Williams.  96. 
Nicholson  v.  llallet,  301. 

V.  Halsey,  247,  400. 
NicoU  V.  The  N.  Y'.  and  E.  R.   R.  Co.  46, 
102,  105, 106.  205,  469,  520. 
"       V.  Walworth,  245. 
Nipper  V.  Groesbeck,  486. 
Nixon  V.  Hvserott,  254,  270,  271,  423. 
Norman  v.  Wells,  416,  417,  431. 
Norris  T.  Beyoa,  168. 
North  River  Bank  v.  Ayman,  244. 
Northrop  v.  Wright,  357. 
Nostrand  v.  Dunham,  222. 
Nowlen  v.  Colt,  185. 
Noyes  v.  Blaknian,  243,  284, 


0 


Odell  V.  Buck,  377. 
Ogden  V.  Smith,  265  262. 
Ogilvie  V.  Hull,  210. 
Olmstead  v.  Elder,  131. 
Osgood  V.  Dewey,  99. 

V.  Franklin,  252,  253,  440. 
Osterhout  v.  Shoemaker.  367. 
Oswald  v.  Gilfert,  430. 
Osweoo  V.  The  Oswego  Land  Appraisers, 
225. 

Falls  Bridge  Co.  v.  Fish,  202. 
Overbagh  v.  Patrie,  165. 


Palmer  v.  Guernsey,  112. 
Parker  v.  Bogardus,  479. 
v.  Foote,  219.  349. 
Parks  V.  Parks,  244,  505,  626. 
Parmelee  v.  Oswego  and  S.  R.  R.  Co.  105. 
Parsons  v.  Miller,  403. 

"        V.  Parsons  517. 
Patridge  v.  Havens,  293. 
Payn  v.  Beal.  175,  'Jll,  456. 
Peabody  v.  Fenton,  113,  262. 
Peck  v.  Halsey,  502,  515. 

"     V.  Young,  321. 
Pendleton  v.  Fay,  113,  262. 
Penny  v.  Cortwithe,  400. 
People  V.  Arnold,  528. 

"         V.  Barnes,  450. 

"        V.  Bristol  and  Rens.  Turnpike  Co. 
368. 

"        V.  Canal  Appraisers,  220. 
V.  Conklin,  321,  345. 

"         V.  Cunningham,  347. 
■  "         V.  Cutting,  346. 

"         V.  Dennison,  346.   . 
V.  Gilbert,  247. 
V.  Haskins,  211,  456. 

"        V.  Hillsdale  Chatham  T.  R.  101. 

"         V.  Irvin,  319. 

"        V.  Kingston  &c.  Turnpike,  Co.  101. 

"         V.  Luther,460. 

"        V.  Manhattan  Co.  101,  102. 

"         V.  Manning,  109. 

"        V.  Mauran,  149,  469. 

"        V.  Norton,  246. 

"         V.  Rickert,  426. 

"        V.  Rathbun,  460. 

"         V.  Sevmour,  405. 

V.  Utlca  Ins.  Co.  46, 101,  200. 

"        V.  Van  Rensselaer,  346,  351,  528. 
V.  Wendell,  405. 
Pepper  v.  Haight,  371. 
Peru  Iron  Co.  ex  parte,  460. 
Peterson  v.  Clarke,  111,  112. 
Petit,  matter  of,  449. 
Phillips  V.  Covert,  95. 
Pierce  v.  Alsop,  531. 

"      V.  Nichols,  543. 


XXVIU 


TABLE  OF  CASES. 


Pierrepont  v.  Barnard,  368. 
Piggot  V.  Mason,  415,  430. 

V.  Waller,  500. 
Pigot's  case,  399,  400. 
Pitman  v.  Stevens,  511. 
Pinero  v.  Judson,  215. 
Pitcher  v.  Livingston,  413. 
Piatt  V.  Johnson,  221. 
Pollv  V.  Saratoga  and  W.  R.  R.  147. 
Pond  V.  Bergh,'61,  329,  407,  479,  480,  497, 

505,  509. 
Poole's  case,  86. 
Poor  V.  Horton,  422. 
Porter  v.  Hill,  183. 
Post  V.  Hover,  508. 

"     V.  Kearney,  430. 

"     V.  Pearsall,  349. 

"     V.  Post,  94,  95,  96,  158. 
Potter  V.  Chapin,  226. 
Powell  V.  Tuttle,  132. 
Prescott  V.  Hull,  439. 
Preston  v.  Christmas,  418. 
Price  v.  Page,  616. 
Priest  V.  Cummings,  64. 
Prouty  V.  Prouty.  96. 
Pugsley  V.  Aikin,  95. 
Putnam  v.  Ritchie,  183. 
»      V.  Wise,  184,  185. 


Q 


Quackenboss,  ex  parte,  447. 
Quincy,  ex  parte,  86. 

R 

Radcliff's  case,  324. 

Rathbone  v.  Dyckman,  168,  504,  505,  507. 
Rathbun  v.  Rathbun,  236,  385. 
Rawson  v.  Lampraan,  232. 
Raymond  v.  White,  84. 
Raynor  v.  Wilson,  396,  400. 
Read  v.  Snell,  505. 
Reade  v.  Livingston,  236,  292. 
Reed  v.  Marble,  144. 
Reid  V.  Fitch,  234. 
"     V.  Pratt,  368. 
Rees  V.  Overbaugh,  400. 
Renisen  v.  Brinkerhoof,  482;  490. 
Ronwick  v.  Renvvick,  341. 
Reynolds  v.  Reynolds,  63,  70,  522,  523. 
V.  Shuler,  317. 

"         V.  Streeter,  83. 
Rhodes  v.  Canfield,  130. 
Rich  v.  Baker,  462. 
Richardson  v.  Evans,  108. 

"  V.  Spragg,  505. 

Rickert  v.  Snyder,  416. 
Rider  v.  Smith,  190. 
Ridgley  v.  Johnson,  182. 
Rieben  v.  Hicks,  487. 
Rigden  v.  Vallier,  179. 
Right  V.  Smith,  237. 


Right  V.  Thomas,  253. 
Risley  v.  Baltinglass,  498. 
Ritchie  v.  Putnam,  321. 
Rives  v.  Watson,  211. 
Roach  V.  Cosene,  217. 
Roberts  v.  Jackson,  51,  301. 

V.  Walker,  523. 
Robinson  v.  Cropsey,  111. 

"  V.  Gumming,  128. 

Rockwell  v.  Adams,  406. 
Roe  v.  Harrison,  107,  108. 

"     V.  Read,  510. 
Rogers  v.  Bradshaw,  468. 

"      V.  Dill,  447,  448. 

"      V.  Eagle  Fire  Ins.  Co.  442. 

"      V.  Murray.  236. 

"      V.  Ross,  518. 
Rollin  V.  Pickett,  404. 
Rose  V.  Rose,  496. 
Roseboom  v.  Maker,  265,  266. 

"         V.  Van  Vechten,  57,  58,  365. 
Rosse's  case,  306,  307. 
Rowan  v.  Lytle.  96. 
Ruckman  v.  A.ston,  141. 
Ruddon  v.  McDonald,  489. 
Ruggles  V,  Lawson,  385. 
Runyan  v.  Messereau,  113,  115,  125,  537. 

V.  Stewart,  62,  434. 
Russell  V.  Allen,  533, 

"       V,  Austin,  247. 
Rutgers  v.  Hunter,  415,  430. 
Rutherford  v.  Rutherford,  490. 
Ryers  v.  Wheeler,  435,  510,  511. 
Rymer  v.  Clarkson,  483,  485. 


s 


Sackrider  v.  Beers,  221. 
Saffery  v.  Alderson,  82. 
Safford  v.  Safford,  63,  73. 
Sa^e  v.  Cartwrlght,  55. 
Salisbury  v.  Marshall,  217. 
Sands  v.  Gelston,  361. 
Sanford  v.  Handy,  244,  271. 

"       V.  Jackson,  69. 

"       V.  McLean,  64,  392. 
Salt  V.  Chattaway,  523. 
Sayre  v.  Wisner,  74, 
Schalcross  v.  Finden,  522. 
Schenck  v.  McKie,  134. 
Schermerhorn  v.  Barhydt,  340. 

V.  Miller,  58,  456. 
Schieffelin  v.  Carpenter,  429. 
Schryver  v.  Teller,  146. 
Scliutt  V.  Large,  396, 400. 
Scott  V,  Howard,  529,  530. 

"     V.  Sanford,  44. 
Seaman  v.  Vawdrey,  50. 
Sedgwick  v.  Hallenbeck,  117,  151  415. 
Selden  v.  Hitchcock,  185, 

"      V.  Vermilyea,  251,  259,  545. 
Seguine  v.  Seguine,  485, 
Seymour  v.  Delancy,  543. 


TABLE  OF  CASES. 


XXIX 


Sevmour  v.  The  Canandaigua  and  N.  R. 
^  R.  148. 

V.  Van  Wyck,  486,  491. 
Sharp  V.  Brandow,  354. 
Shaw  V.  Crawford,  226, 
"     V.  Johnson,  131. 
"     V.  Hearsey,  180. 
"     V.  White,  73. 
Shelley's  case,  166. 
Sbepavd  v.  Merrill,  218. 
''        V.  Philbrick,  90. 
"        V.  Shepard,  118,  292. 
Shepherd  v.  McEvers,  244. 
Sherman  v.  Garfield,  140. 
Sherwood  v.  Reade,  131. 

"        V.  Vandenburgh,  357. 
Shewen  v.  Vanderhorst,  341. 
Shirras  V.  Craig,  118. 
Siglar  V.  Van  Riper,  73,  cat. 
Simpson  v.  Hart,  364. 
Sims  V.  Humphrey,  217. 
Sinclair  v.  Jackson,  110,^70. 
Skeel  V.  Spraker,  147,  304. 
Skidmore  v.  Romaine,  340,  .i41. 
Slee  V.  Manhattan  Co.  112,  137. 
Small  V.  Mott,  371. 
Smiles  v.  Hastings,  196. 
Smith  V.  Adams,  222. 
"      V.  Benson,  89. 
"      V.  Burtis,  354. 
"       V.  Kerr,  419. 
«'      V.  Marrable,  216,  427. 
"      V.  McGowan,  400,  461. 
"       V  Sanser,  546. 
.<      v'.  Smith,  181,  185,  186,  511,  518. 

"      V.  Stewart,  99. 
"       V  Wait,  3G6,  493. 
«'       V.  Wyckoff,  363.     -. 
Snyder  V.  Sponable,  269. 
'•      V.  Stafford,  146. 
"      V  Warren,  460. 
Souverbie  v.  Arden,  385. 
Southworth  v.  Van  Pelt,  126,  1^7, 
Southy  V.  Hutt,  543. 
Souzer  V.  De  Meyer,  248 
Spaldins  v.  Hallenbeck,  103,  441,  442. 
Sparrow  v.  Hardcastle,  495. 
"        V.  Kingsman,  367. 
Spencer  v.  Harford,  142. 

"       V.  Noyes,  416. 
Spencer's  case,  416. 

Spraker  v.  Cook,  217.  „,   ni  q  aoq 

Springstein  v.  Sehermerhorn,  91,  218,  43» 
Squire  v.  Handy,  236. 
Staats  V.  Ten  Eyck,  413. 
Stafford  v.  Van  Rensselaer,  130. 
Stalker  v.  McDonald,  122. 
Stanard  v.  Eldridge,  415. 
St  Andrews  v.  Tompkms,  118. 
Stanton  v.  Cline,  134. 
Starr  v.  Ellis,  303. 
State  V.  Trask,  226. 
State  of  Connecticut  v.  Jackson,  14/. 
Stead's  Ex's  v.  Course,  464. 


Stedfast  v.  NichoU,  171. 
Steniker  v.  Dickinson,  247. 
Stevens,  ex  parte,  461. 
Stewart  v.  Doughty,  77,  90,  94. 
"        V.  Hutchins,  110. 
"       V.  Nichols,  613. 
Stewart's  Ex'rs  v.  Lisponard,  377. 
Stiles  V.  Hooker,  349. 
St  John  V.  Bumpstead,  134. 
"       V.  Northup,  335. 
"       V.  Stensdring,  185. 
Storrs  V.  Baker,  368. 
Stoughton  V.  Pasco,  118. 
Stow  V.  Tiffl,  62,  124,  151. 
Strong  V.  Skinner,  292 

'<       V.  Trustees  of  Mitchell,  IIZ. 
1      "       V.  Wilkins,  255. 
Stuart  V.  Kissam,  294. 
'  Stuyvesant  v.  Davis,  105. 

^.  V.  Hall,  147,  395,  535. 

V.  The  Mayor  of  N.Y.  223 
Supervisors  of  Niagara  v.  The  People,  200. 
Surman  v.  Surman,  515. 
Suydam  v.  Jones,  415^,^418. 
Swaim  v.  Paine,  74,  77. 
Sweet  v.  Van  Wyck,  113. 
"      V.  Green,  461. 


T 

Talbot  V.  Chamberlin,  115,  456,  462,  532. 
Tallman  v.  White,  463. 
Talmadge  v.  Pell,  200. 
Taylor  v.  Bullen,  106. 
"       V.  Gould,  525. 
"       V.  Horde,  53. 
"       V.  Morris,  255,  262. 
"       V.  Porter,  197,  466. 
"      V.  Thompson,  154. 
"       V.  Thompson's  lessees,  630. 
"       V.  Wendell,  481. 
'<       V.  Whitehead,  196. 
Teal  v.  Woodworth,  277. 
Thatcher  v.  Powell,  131. 
Theological  Sem.  of  Auburn  v.  Child,  475. 
Thirty-ninth  street,  matter  of,  2-4. 
"      second      "  "  ^*''** 

Thomas  v.  Phelps,  511. 

»       v.  Stevens,  517.  ,  tt   t> 

Thompson  v.  The  New  Haven  and  U.  K. 

'^-  202. 
Thornton  v.  Payn,  424. 
Thurman  v.  Cameron,  395. 
Tice  V.  Anin,  135,  145. 
Timmins  v.  Rowlinson,  94. 
Tinney  v.  Tinney, 67, 
Titus  V.  Lewis,  459. 

"     V.  Neilson,  64. 
Toll  V,  Hiller,  147. 
Tone  v.  Brace,  412,  430. 
Tonnelle  v,  HaU,  484. 
Tompkins  v.  Tompkins,  522. 
Tousey  v.  Tousey,  98. 
Town  V.  Needham,  187,  367,  doo. 


TABLE  OF  CASES. 


Townsend  v.  Corning,  271. 

V.  Hubbard,  271,  876,  383. 
Trott  V.  Vernon,  522. 
Troup  V.  "Wood,  533. 
Truax  v.  Thorn,  361,  371. 
Truscott  V.  King,  117,  118,  119,  535. 
Trustees  of  Watertown  v.  Cowen,  224. 
Tucker  v.  Tucker,  250. 
Tuffts  V.  Tuttls,  154. 
Tufts'  Adm.  V.  Tufts,  529. 
Tunison  v.  Tunison,  487. 
Tuttle  V.  Hill,  361, 

"      V.  Jackson,  371. 
Twenty-ninth  street,  matter  of,  224. 
Twisden  v.  Lock,  410. 

u 

United  States  v.  Arredondo,  107. 
"  V.  Crosby,  472. 

"  T.  Devereux,  46. 

"  V.  Fisher,  155. 

"  V.  Hoe,  118. 

•'  V.  Reading.  106. 


Vail  T.  Vail,  287,  338,  364. 
Vallance   v.  Bausch,  60. 
Van  Benschoten  v.  Lawson,  147. 
Van  Bergen  v.  Van  Bergen,  221. 
Van  Bracklin  v.  Fonda,  216. 
Van  Buren  v.  Olmstead,  112,  127. 
Van  Cortland  v.  Tozer,  389. 

"  V.  Kip,  499. 

Van  Dayne  v.  Thayre,  164,  144. 
Vauderbeyden  v.  Crandall,  54,  167,  172, 
325,  336. 
"  V.  Mallory,  294. 

Vandarkan  v.  Vandarkan,  411. 
Vanderkemp  v.  Skelton,  122,  143,  145. 
Vanderpool  v.  Vanvalkenburgh,  471. 
Van  Derzee  v.  Van  Dei'zee,  508. 
Vanhorne  v.  Dorrance,  106. 
Vankleeck  v.  Dutch  Church,  477. 
Van  Orden  v.  Van  Orden.  69. 
Van  Rensselaer  v.  Ball,  204,  207,  213,  431. 
.     "  V.  Chadwick,  211,  212. 

"  V.  Gallup,  431. 

"  T.  Hays,  43,  54,  204,  205, 

207,  208,213,370,416, 
426,  431. 
"  V.  Jewett,  208,  211,  213, 

214. 
"  V.Jones,  203,208,  211, 212, 

214. 
"  V.  Penniman,  91,  429. 

"  V.  Boucher,  47,  48, 54, 167, 

"  V.  Radcliff,  190,  348. 

"  V.  Smith,  208, 

V.  Snyder,  208,  213. 
Van  Schoonhoven,  matter  of,  480. 
Van  Vechten  v.  Van  Vechten,  525. 


Van  Vranklin  v.  Fonda,  427. 
Van  Wort  v.  Benedict,  255,  259,  473. 
Van  Wyck,  matter  of,  256. 
V.  Wright,  407. 
Varick  v.  Jackson,  371,  480. 

"       V.  Tallman.  462. 
Varrick  v.  Smith,  221. 
Vaughn  v.  Ely,  461. 
Vecbte  v.  Brownell,  127. 
Vergne,  De  La  v.  Evertson,  533. 
Verplank  v.  Sterry,  380. 
Voorhees  v.  Presbyterian  Ch.  Amsterdam, 

124,  373,  388. 
Vredeuburgh  v.  Morris,  456. 
Vroom  V.  Ditmas,  138. 
Vrooman  v.  Shepherd,  422. 

w 

AVadham  v.  Am.  H.  M.  S.  140. 

Wadsworth  v.  Wadsworth,  478. 
Wait  V.  Dav,  235,  457. 

"     V.  Wa'it,  66,  70. 
Waite  V.  Templer,  502. 
Waldron  v.  Comb,  254. 
Walker  v.  Schuyler,  73. 

"      V.  Sherman,  85,  88,  89. 
"       V.  Snediker,  118. 
Waller  v.  Harris,  138. 
AValtermire  v.  Westover,  153. 
Walton  V.  Tefifl,  220. 

"      V.  Walton,  496. 
Ward  V.  Kitts,  74. 
Waring  v.  Smith,  116,  125,  128,  386. 

"       V.  Smyth,  128,  400.  401. 
Warner  v.  Beers,  200. 

"      V.  Hitchins,  430. 
Warren  v.  Davies,  522. 
"      V.  Leland,  90. 
"       V.  Lynch,  .383. 
Warwick  v.  Warwick,  271. 
Waters  v.  Cullen,  473. 
Watertown  v.  Cowen,  416. 
Watson  V.  Le  Row,  115,  457. 
Watts  V.  Coffin,  209. 
Webb  V.  Alexander,  413,  414. 
"      V.  Bindon,  371,  422. 
"      V.  Rice,  112, 113. 
Welland  Canal  v.  Hathaway,  368. 
Wendell  v.  Crandall,  161,  162,  325. 
V.  The  People,  346. 
"        V.  Van  Rensselaer,  368. 
West  V.  West,  321. 
Westcott  V.  Cady,  504. 
Western  Ins.  Co.  v.  The  Eagle  Ins.  Co.  143. 
Westervelt  v.  Gregg,  258. 
Westlake  v.  De  Graw,  100,  217. 
Wheeler  v.  The  Rochester  and  S.  R.  R.  469. 
Whelaa  v.  Whelan,  380. 
Whitacre  v.  Whitacre,  272. 
Whitbeck  v.  Cook,  277,  414. 
"         V.  Kane,  112. 
"        V.  Patterson,  487. 
White  V.  Carpenter,  531. 


TABLE  OF  CASES. 


XXXI 


White  V.  Colt,  185. 
"      V.  Knapp,  114. 
"      V.  McMaine,  203. 
"      V.  Moore,  120,  216,  398. 
"      V.  Scott,  192. 
"      V.  Skinner,  271. 
"      V.  Vermont  and  M.  R.  R.  Co.  203, 
208. 
Wbitmarsh  v.  Cutting,  83. 
Whitney  v.  Spencer,  107. 
Wickham  v.  Coukiin,  352. 
Wiggins  V.  Tahnadee,  225. 
Wilcox  V.  Fitch,  247. 

"      V.  Randall,  65,  434. 
"      V.  Smith,  341,  342. 
'•      V.  Wood,  81,  424. 
Wilde  V.  Jenkins,  149,  186,  383. 
Wilder  v.  Winne,  535. 
Wilkes  V.  Ferris,  403. 
Willard  v.  Tillman,  82,  422. 
Williams  v.  Chitty,  522. 

"        V.  Payton's  Lessee,  464. 
"        V.  Saffbrd,  194,  195,  196. 
"        V.  The  Bank  U.  S.  108. 
"        V.  Thorn,  399. 
"        V.  Woodard,  254,  425. 
Willoughby  v.  Jenks,  225. 
Wilson  V.  Martin,  425. 
"      matter  of,  448. 
"      V.  Reed,  185. 
"      V.  Smith,  201. 
"      V.  Troup,  139,  253. 
"      V.  Wilson,  240,  340. 


Winne  v.  Reynolds,  543. 

Wiswall  V.  Hall,  200. 

Witbeck  v.  Waine,  305. 

Withy  V.  Mumford,  416,  417. 

Wodever  v.  Knapp,  188. 

Wolfe  V.  Van  Nostrand,  160, 172, 505, 506, 

523. 
Wood  V.  Chapin,  124,  373. 

"      V.  Colvin,  458. 

"      V.  Jackson,  365,  379,  461. 

"      V.  Wilcox,  100,  215. 

"      V.  Wood,  280,  440. 
Woodcock  V.  Bennett,  461. 
Wooley  V.  Constant,  400,  418. 
Worrall  v.  Munn,  886,  418. 
Wright  V.  Butler,  365. 
"      V.  Douglass,  460. 
"      V.  Tallmadge,  255,  259,  289. 
Wyman  v.  Bland,  416. 

"       Mayor  of  N.  Y.  224,  <i25. 
Wyncoop  v.  Burger,  196. 


Yale  V.  Dederer,  140. 
Yarborough  v.  Newell,  112. 
Yea  V.  Field,  647,  548. 
Youle  V.  Richards,  127. 
Young  V.  Black,  365. 


De  Zeng  v.  Beekman,  384. 


CASES 


CITED   IN   THE   APPENDIX   OF   FORMS. 


Adams  v.  Saratoga  and  Washington  R.  R. 
616. 

Bank  of  Rochester  v.  Gray,  604. 
Barney  v.  Griffin,  582. 
Beck  V.  Burdett,  582. 
Belmont  v.  O'Brien,  676. 
Benedict  v.  Gllman,  604. 
Bergen  v.  Bennet,  613. 
Berkley  v.  Hardy,  674. 
Blanchard  v.  Blood,  631. 
Boardman  v.  Halliday,  582,  697. 
Bogert  V.  Haight,  582. 
Bool  V.  Mix,  567. 
Bradish  v.  Gibbs,  631. 
Bull  V.  Follett,  614. 
Butts  V.  Genung,  614. 

Carpenter  v.  Herrington,  582. 
"         V.  Schermerhorn,  591. 


Carver  v.  Jackson,  601. 
Champion  v.  Brown,  571. 
Coster  V.  Lorillard.  636. 
Cox  V.  Wheeler,  604. 
Croswell  v.  Crane,  621. 

Demarest  v.  Willard,  578. 
Dibble  v.  Rogers,  564,  665. 
Doolittle  V.  Lewis,  604. 
Dow  V.  Platner,  582. 
Duvall  V.  Covenhoven,  563. 

Earl  V.  Camp,  582. 
Edgerton  v.  Peckham,  571. 

Frazer  v.  Western,  637. 

Germond  v.  Jones,  635. 
Gillet  V.  Stanley,  565,  567. 
Gott  V.  Cook,  638. 
Grout  V.  Townsend,  591. 


yxxu 


TABLE  OF  CASES. 


Hall  V.  Penny,  582. 
Hallet  V.  Wylie,  614. 
Harris  v.  Clark,  636. 
Hawley  v.  James,  636. 
Haxtun  v.  Corse,  637,  639. 
Holmes  v.  Seeley,  619. 
Hone  V.  Fisher,  614. 
Howard  v.  Doolittle,  621. 
Hunter  v.  Hunter,  639. 

Ingraham  v.  Baldwin,  604. 

Jackson  v.  Allen,  619. 

"  V.  Bush,  567,  597. 

"  V.  Colden,  613. 

"  V.  Collins,  597. 

"  V.  Davis,  567,  597. 

"  V.  Edwards,  637. 

"  V.  Guraaer,  563. 

"  V.  Harrow,  565. 

"  V.  Lock  wood,  604. 

"  V.  Tuttle,  597. 

"  V.  Vanderheyden,  591. 

"  V.  Vickory,  565. 
Johnson  v.  Bush,  568. 

Kidd  V.  Dennison,  571. 
Kilpatrick  v.  Johnson.  640. 
Kinney  v.  Watts,  614. 
Knapp  V.  Alvord,  613. 

Lawrence  v.  Kemp,  621. 
Leavitt  v.  The  Steam  Saw  Mill  Ass. 
Le  Britton  v.  Miles,  639. 
Leggett  V.  Perkins,  638,  639. 
Livingston  v.  Newkirk,  571. 
Lyon  V.  Clark,  604. 

Mason  v.  Jones,  638. 
Meacham  v.  Sternes,  582. 
Mickles  v.  Touseley,  582. 
McWhorter  v.  McMahan,  564. 

New  York  Trust.  Co.  v.  Milnor,  619. 
Nicholson  v.  Leavitt,  582. 


568. 


Nicoll  V.  N.  Y.  and  Erie  R.  R.  587, 
Norman  v.  Wells,  564. 
Noyes  v.  Blakeman,  676,  632. 

Osgood  V.  Franklip,  613. 

Paine  v.  Miller,  671, 
Porter  v.  Clark,  582. 

Runyan  v.  Mersereau,  577. 

Savage  v.  Burnham,  637. 

Selden  v.  Vermilyea,  638. 

Schermerhom  v.  Barhydt,  614, 

Shinas  v.  Caig,  603. 

Slee  V.  Manhattan  Co.  613. 

Smith  V.  Wyckoff,  638.  * 

Statutes  as  to  proof  of  deeds,  640  et  seq. 

Strong  V.  Skinner,  631.    • 

"      V,  White,  637. 
Swartout  v.  Burr,  571. 

Taggard  v.  Roosevelt.  621. 

Teal  V.  Woodworth,  591. 

Townsend  v.  Hubbard,  569,  574, 

Trust  Co.  V.  Smith,  577. 

Trustees  of  Auburn  Th.  Sem.  v.  Kellogg, 

640. 
Tucker  v.  Tucker,  635. 

Vail  V.  Vail,  639. 
Van  Allen  v.  Humphrey,  631. 
Van  Der  Kempt  v.  Shelton,  577. 
Van  Rensselaer  v.  Snyder,  621. 
Van  Wyck  v.  Alliger,  671. 

Wambaugh  v.  Gates,  614. 
Wells  V.  Smith,  571,  572,  573. 
Whitbeck  v.  Cook,  591. 
Wilks  V.  Back,  574. 
Williams  v.  Porter,  621. 

"        V.  Williams,  640. 
Wright  V.  Tallmadge,  640. 

Young  V.  Dake,  621. 


LAW  OF  ESTATES. 


PART  I. 

OF  THE  LAW  OF  EEAL  ESTATE. 


CHAPTER  I. 

OF  TENURE  ;  AND  OF  THE  PERSONS  CAPABLE  OF  HOLDING  AND 
CONVEYING  LAND. 

Section  I. 

Of  Tenure. 

A  PRELIMINARY  dissertation  on  tenures,  has  been  deemed  in 
Enj^land  a  necessary  introduction  to  the  law  of  real  property. 
Much  of  ihis  branch  of  the  law  has  its  origin  in  the  feudal  system. 
(1  Cruise,  Greenleaf's  cd.  p.  1.)  This  system,  as  it  was  established 
in  Normandy,  is  said  to  have  been  first  introduced  into  England  by 
William  the  Conqueror.  One  of  the  principal  fruits  of  that  event 
was  the  adoption  of  the  maxim,  or  fiction  of  English  law,  that  all 
the  lands  in  the  kingdom  were  originally  granted  out  by  the  king ; 
and  held  mediately  or  immediately  of  the  crown,  in  consideration  of 
certain  services  to  be  rendered  by  the  tenant.  The  thing  holden 
was  called  a  tenement,  the  possessors  thereof  tenants,  and  the  manner 
of  their  possession  a  tenure.  {Ibid.  23.)  Lord  Coke,  in  his  Com- 
mentary upon  Littleton,  after  showing  the  origin  of  the  word  tenant, 
says,  "  We  have  not  properly  in  the  law  of  England,  allodium,  that 
is,  any  subject's  land  that  is  not  holden."     {Co.  Litt.  1  &.) 

The  distinctive  difference  between  feudal  and  allodial  tenure  is 


42  OF  TENURE. 

that  tlie  former  denotes  a  holding  of  some  superior  hy  service  ot 
some  kind,  and  the  latter  a  holding  free  from  any  rent  or  service. 
They  are  the  opposites  of  each  other. 

On  the  settlement  of  this  country  by  emigrants  from  England, 
such  parts  of  the  common  law,  and  statute  law  of  that  country,  as 
were  applicable  to  our  circumstances,  were  in  general  adopted  by  the 
colonies.  But  the  feudal  system  was  never  adopted ;  though  many 
of  the  terms  and  phrases,  having  their  origin  in  that  system,  were 
incorporated  into  our  laws,  and  were  frequently  so  used  in  our  con- 
veyances. They  are  still  used,  though  generally  in  a  different  or 
modified  sense,  from  their  original  meaning.  A  brief  sketch  of  the 
feudal  system,  and  of  the  ancient  and  modern  English  tenures,  will 
be  found  in  the  first  title  of  Cruise's  Digest,  in  Blackstone's  Com- 
mentaries, and  in  Kent's  Commentaries ;  but  it  is  not  deemed  neces- 
sary, for  the  purposes  of  this  treatise,  to  enlarge  upon  the  subject. 

Tenure,  in  its  appropriate  sense,  denotes  the  mode  or  principle  of 
holding  of  a  superior  by  service ;  and  is  the  fundamental  principle 
of  the  feudal  system.  Though  in  this  country  all  title  is  derived 
from  the  government,  it  is  not  so  derived  in  a  feudal  sense. 

In  this  state,  at  an  early  day  after  the  revolution,  the  act  con- 
cerning tenures  was  enacted.  (1  R.  L.  70.)  It  has  remained  a  part 
of  our  system  ever  since,  and  will  be^  considered  hereafter  more  at 
large  in  its  proper  place.  At  present  it  is  only  necessary  to  mention 
that  it  is  expressly  enacted  that  the  people  of  this  state,  in  their 
right  of  sovereignty,  are  deemed  to  possess  the  original  and  ultimate 
property  in  and  to  all  the  lands  within  the  jurisdiction  of  the  state. 
It  is  further  provided  that  all  lands,  the  title  to  which  shall  fail 
from  a  defect  of  heirs,  shall  revert  or  escheat  to  the  people.  (1  R.  L. 
380,  §  2.  \  R.  S.  718.  3  id.  2,  5tli  ed.)  By  the  same  statute  all 
lands  within  the  state  are  declared  to  be  allodial,  so  that,  subject 
only  to  the  liability  to  escheat,  the  entire  and  absolute  property  is 
vested  in  the  owners  according  to  the  nature  of  their  respective 
estates ;  and  all  feudal  tenures  of  every  description  with  all  their 
incidents  are  abolished.  (3  R.  S.  2,  5th  ed.)  This  statute  has  sev- 
eral times  been  the  subject  of  judicial  interpretation.  It  has  been 
generally  treated  as  putting  an  end  to  all  feudal  tenures  between 
one  citizen  and  another.  It  has  been  held  to  be  retro-active,  and 
that  after  its  passage  all  restraints  upon  alienation  contained  in  con- 
veyances in  fee,  whether  executed  before  or  after  its  date,  are  void. 


OF  TENURK  •  43 

{De  Peyster  v.  3Iichael,  2  Seld  467.  Vaji  Rensselaer  v.  Hays,  19 
N.  Y.  Rep.  68.     Jackson  v.  Hart,  12  e/o/wi.  81.) 

But  the  act  provided  that  the  abolition  of  tenures  should  not  take 
away  or  discharge  any  rents  or  services  certain,  which  at  any  time 
theretofore  had  been  or  thereafter  might  be  created  or  reserved  ;  nor 
should  it  be  construed  to  affect  or  change  the  powers  or  jurisdiction 
of  any  court  of  justice  in  the  state.     (3  R.  S.  2,  §  4,  6th  ed.) 

The  principles  of  the  act  of  1787,  enunciating  the  original  and 
ultimate  property  of  the  people  of  this  state,  in  their  right  of  sove- 
reignty, in  and  to  all  lands  within  their  jurisdiction  ;  and  declaring 
that  all  lands  the  title  to  which  shall  fail  from  a  defect  of  heirs, 
shall  revert  or  escheat  to  the  people ;  and  abolishing  all  feudal  ten- 
ures of  every  description,  with  all  their  incidents,  saving  however  all 
rents  and  services  certain  which  at  any  time  theretofore  had  been 
lawfully  created  or  reserved ;  and  declaring  all  lands  within  this 
state  to  be  allodial,  subject  only  to  the  liability  to  escheat ;  are 
contained  in  the  organic  law,  and  form  a  part  of  the  present  consti- 
tution.    (Const,  of  1846,  art.  1,  §§  11-13.) 

The  early  settlers  of  this  country  did  not  claim  the  right  of  soil  by 
virtue  of  discovery  and  settlement  except  as  against  other  nations,  and 
conceded  the  right  of  occupancy  to  the  aborigines.  The  settlers 
merely  claimed  the  right  of  pre-emption,  admitting  that  it  belonged 
to  the  government  to  extinguish  the  Indian  title  by  purchase,  which 
has  in  every  instance  been  done.  (Johnson  v.  Mcintosh,  8  Wheaton, 
543,  574.  3Iao'tin  v.  WaddeU,  16  Peters,  367.)  The  title  of  indi- 
viduals was  derived  from  their  own  governments.  (Jackson  v.  Hart, 
12  John.  81.) 

The  oppressive  features  of  the  feudal  system  were  never  adopted 
in  this  country.  They  were  abolished,  even  in  England,  by  the  act 
of  12  Charles  2.  But  the  idea  and  language  of  tenure  have  been 
retained  to  a  certain  extent  to  the  present  day ;  and  much  of  the 
language  of  conveyances  had  its  origin  under  institutions  which  have 
long  since  passed  away.  There  is  no  practical  inconvenience  in  these 
changes,  since  the  rights  which  the  language  represents  are  in  all 
cases,  either  recognized  by  statute  or  by  local  usage.  The  doctrine 
of  escheat  and  of  waste,  and  many  of  the  doctrines  in  relation  to 
rents,  are  of  feudal  origin. 


44  WHO  MAT  HOLD. 


Section  II, 
Of  the  persons  capable  of  holding  and  conveying  lands. 

It  is  in  this  state  declared  by  statute,  (1  B.  S.  719,)  that  every 
citizen  of  the  United  States  is  capable  of  holding  lands  within  this 
state,  and  of  taking  the  same  by  descent,  devise  or  purchase.  The 
same  statute  further  declares  that  every  person  capable  of  holding 
lands  (except  idiots,  persons  of  unsound  mind  and  infants)  seised 
of  or  entitled  to  any  estate  or  interest  in  lands,  may  alien  such  estate 
or  interest  at  his  pleasure,  with  the  effect  and  subject  to  the  restric- 
tions and  regulations  provided  by  law.  (Id.  §  10.)  This  is  merely 
declaratory  of  the  common  law. 

In  the  case  of  Scott  v.  Sanford,  (19  Howard,  393,)  the  supreme 
court  of  the  United  States  decided  that  a  free  negro  of  the  African 
race,  whose  ancestors  were  brought  to  this  country  and  sold  as  slaves, 
is  not  a  citizen  within  the  meaning  of  the  constitution  of  the  United 
States.  That  case  does  not  affect  the  question  whether  such  negro, 
if  born  in  this  country  and  no  longer  a  slave,  is  capable  of  holding 
and  aliening  lands  within  the  state  of  New  York,  The  constitution 
of  1777  makes  no  distinction  of  color  with  regard  to  inhabitants 
entitled  to  vote,  or  to  hold  real  estate,  and  by  a  strong  implication 
admits  the  capacity  of  colored  persons  who  labor  under  no  other 
incapacity,  to  hold  and  of  course  to  convey  real  estate.  This  feature 
has  been  retained  in  both  the  subsequent  constitutions,  so  far  as 
relates  to  negroes. 

But  a  different  rule  prevailed  in  relation  to  Indians.  They  were 
not  treated  as  citizens,  but  as  distinct  tribes  or  nations,  being  under 
the  protection  of  the  government.  No  person  was  allowed  to  pur- 
chase any  right  or  title  to  land  from  any  Indian,  without  the  author- 
ity or  consent  of  the  legislature.  {Goodell  v.  Jackson,  20  John. 
693.  1  B.  S.  719,  §  12.)  Many  statutes  wer-e  enacted  on  the  sub- 
ject with  a  view  to  protect  the  Indians  against  fraud  and  imposition, 
which  will  be  found  collected  and  reviewed  by  Chancellor  Kent, 
in  his  elaborate  opinion  in  the  last  mentioned  case.  These  statutes 
were  founded  on  wise  and  considerate  principles  of  justice  and  policy. 
The  necessity  for  them  has  in  a  great  measure  ceased,  with  the 
diminished  number,  and  the  improvement  of  the  tribes.  Accord- 
ingly our  legislation  on  the  subject  has  undergone  corresponding 


INDIAN— ALIEN.  45 

changes.  By  the  act  of  1843,  {ch.  87,  §  4,  3  i?.  S.  3,  §  13,  5th  ed.) 
any  native  Indian  is  permitted,  after  the  passage  of  that  act,  to 
purchase,  take,  hold  and  convey  lands  and  real  estate  in  this  state, 
in  the  same  manner  as  a  citizen ;  and  whenever  he  shall  become  a 
freeholder  to  the  value  of  one  hundred  dollars,  he  is  made  liable  on 
contracts  and  subject  to  taxation  and  to  the  civil  jurisdiction  of  the 
courts  of  law  and  equity  of  this  state,  in  the  same  manner  and  to 
the  same  extent  as  a  citizen  thereof.  By  a  subsequent  statute,  all 
nations,  tribes  or  bands  of  Indians  who  own  and  occupy  Indian  reser- 
vations within  this  state,  and  hold  lands  therein  as  the  common 
property  of  such  nations,  tribes  or  bands,  are  permitted  by  the  acts 
of  their  respective  Indian  governments  to  divide  such  common  lands 
into  tracts  or  lots,  and  distribute  and  partition  the  same  or  parts 
thereof,  quantity  and  quality  relatively  considered,  to  and  amongst 
the  individuals  or  families  of  such  nations,  tribes  and  bands  respect- 
ively, so  that  the  same  may  be  held  in  severalty  and  in  fee  simple 
according  to  the  laws  of  this  state ;  but  such  lands  are  not  to  be  set 
off  to  any  person  other  than  the  occupant  or  his  or  her  family. 
(Laws  0/1849,  ck  420,  §  7.     3  B.  S.  4,  §  18,  5th  ed.) 

The  disability  of  alienage  is  somewhat  modified  by  our  statutes. 
At  common  law,  though  an  alien  might  purchase  land,  or  take  by 
devise,  he  could  only  hold  until  an  inquest  of  office  was  found.  He 
was  thus  in  constant  danger  of  having  his  lands  taken  from  him  by 
the  paramount  authority  of  the  state.  But  it  is  now  provided  that 
any  alien  who  has  come,  or  may  hereafter  come  into  the  United 
States,  may  make  a  deposition  in  writing,  that  he  is  a  resident  of 
and  intends  always  to  reside  in  the  United  States,  and  to  become  a 
citizen  thereof  as  soon  as  he  can  be  naturalized,  and  that  he  has 
taken  such  incipient  measures  as  the  laws  of  the  United  States 
require  to  enable  him  to  obtain  naturalization ;  and  on  having  the 
same  recorded  in  the  office  of  the  secretary  of  state,  he  is  authorized 
and  enabled*  to  take  and  hold  lands  and  real  estate  of  any  kind 
whatever,  to  him  and  his  heirs  and  assigns  for  ever ;  and  may,  durino- 
six  years  thereafter,  sell,  assign,  mortgage,  devise  and  dispose  of  the 
same  in  any  manner  as  he  might  and  could  do  if  he  were  a  native 
citizen  of  this  state  or  of  the  United  States,  except  that  he  shall 
have  no  power  to  demise  any  real  estate  which  he  may  take  or  hold  by 
virtue  of  this  provision,  until  he  becomes  naturalized.  (1  li.  S.  720 
§  15,  as  amended  in  1834,  ch.  272.  3  E.  S.  5,  §§  24,  25,  5th  ed.) 
This  statute  holds  out  inducements  to  an  alien  seeking  his  fortune 


46  CORPORATIONS. 

amongst  us,  to  perfect  his  naturalization  as  rapidly  as  possible ;  for 
•when  once  naturalized,  he  is  entitled  to  all  the  privileges  and  im- 
munities of  a  natural  born  subject.  By  pursuing  the  course  pointed 
out  in  the  statute  he  can  anticipate  some  of  the  benefits  intended  to 
be  conferred  by  naturalization. 

Although  in  some  respects  a  corporation  aggregate  is  not  a  citizen 
within  the  meaning  of  the  constitution  of  the  United  States,  (Bank 
of  United  States  v.  Devereux,  5  Cranch,  61,)  yet  it  is  quite  obvious 
that  in  the  statute  of  this  state  relative  to  the  persons  capable  of 
holding  and  conveying  lands,  (1  R.  S.  719  ;  3  id.  3,  5th  ed.)  the  use 
of  the  term  citizen  of  the  United  States,  to  designate  the  persons 
capable  of  holding  and  aliening  lands  within  this  state,  was  not 
intended  to  exclude  corporations  from  these  privileges.  A  corpora- 
tion has  been  held  to  be  embraced  under  a  statute  imposing  taxes 
on  inhabitants  of  a  town.  (2  Institutes,  703.)  It  has  been  held  to 
be  comprised  under  terms  denoting  persons,  residents,  &c.  {The 
People  V.  Utica  Ins.  Co.  15  John.  382.  Conroe  v.  Nat.  Protection 
Ins.  Co.  10  How.  Pr,  Rep.  403.)  The  statute  defining  the  general 
powers,  privileges  and  liabilities  of  corporations,  forming  a  part  of  the 
same  revision  of  1830,  declares  that  every  corporation  as  such  has 
power  amongst  other  things  to  hold,  purchase  and  convey  such  real 
or  personal  estate,  as  the  purposes  of  the  corporation  shall  require, 
not  exceeding  the  amount  limited  in  its  charter.  (1  R.  S.  599. 
3  id.  596,  5th  ed.)  And  this  is  probably  the  same  power  which  is 
incident,  at  common  law,  to  all  corporations,  not  expressly  forbidden 
to  deal  in  real  estate.  {Angell  &  Ames  on  Corporations,  83  etseq. 
Moss  v.  The  Rossie  Lead  Mining  Co.  5  Hill,  137.) 

A  corporation,  although  created  but  for  a  limited  period,  may 
acquire  a  title  in  fee  to  lands  necessary  for  its  use.  Even  if  the 
deed  lacks  words  of  perpetuity,  it  takes  a  fee  unless  it  is  in  terms 
restricted  to  some  less  estate.  {Nicoll  v.  The  New  York  and  Erie 
Rail  Road  Co.  2  Kern.  121.) 


NATURE  OF  REAL  ESTATE.  47 

CHAPTER  11. 

OF  REAL  ESTATE,  ITS  NATUEE,  QUALITY  AND  QUANTITY  OF  INTEREST. 

The  most  camprehensive  definition  of  real  property  is  into  lands, 
tenements  and  hereditaments.  Land,  according  to  Coke,  (1  Inst. 
4  «,)  in  its  legal  signification,  comprehends  any  ground,  soil,  or 
earth  whatsoever,  and  all  buildings  erected  thereon.  {31ott  v. 
Palmer,  1  Comst.  569,  570.)  It  extends  indefinitely  upwards  as 
well  as  downwards  ;  the  maxim  being  cujus  est  sohcm  ejus  est  usque 
ad  caelum.  Tenement  signifies  that  which  may  be  holden.  It  is  a 
word  of  a  larger  signification  than  land,  and  by  it  not  only  land 
and  other  inheritances  which  are  holden  will  pass,  but  also  offices, 
rents,  commons,  profits  apprender  out  of  lands  and  the  like  wherein 
a  man  hath  a  frank-tenement  and  whereof  he  is  seised  ut  de  lihero 
tenemento.     (1  Inst.  6  a.) 

Hereditament  is  a  term  of  still  larger  import,  for  it  comprehends 
whatsoever  may  be  inherited,  be  it  corporeal  or  incorporeal,  real, 
personal  or  mixt.     (Id.) 

Real  property  is  thus  either  corporeal  or  incorporeal  The  first 
consisting  wholly  of  substantial  permanent  subjects,  all  which  might, 
at  common  law,  be  comprehended  under  the  name  of  land;  the  last 
such  as  are  not  the  subject  of  the  senses,  but  exist  in  the  mind  only, 
as  rents,  commons,  ways  and  the  like,  being  rights  issuing  out  of 
the  realty.  Indeed,  the  New  York  revised  statutes  expressly  pro- 
vide that  the  term  "real  estate,"  and  "lands,"  as  used  in  the  chapters 
relative  to  real  estates  and  to  title  by  descents,  shall  be  construed 
as  coextensive  in  meaning  with  lujids,  tenements  and  hereditaments. 
(1  B.  S.  750,  §  10.    Id.  755,  §  27.) 

It  must  be  remembered  that  the  legal  meaning  of  the  word  estate 
is  difi"erent  from  its  popular  acceptation.  In  the  latter  sense  it  is 
often,  and  perhaps  generally,  used  to  denote  the  land  itself  But 
in  the  appropriate  legal  signification,  it  is  used  to  denote  the  partic- 
ular right  which  the  owner  may  exercise  in  a  certain  piece  of  land. 
An  estate  in  land,  therefore,  is  the  interest  which  the  owner  has 
therein.  (  Van  Rensselaer  v.  Poucher,  5  Den.  40.  1  Prest.  on  Es- 
tates, 7,  20.     1  Cruise's  Dig.  ch.  3,  tit.  1,  §  11.)     Such  estate  may 


48  NATURE  OF  KEAL  ESTATE. 

greatly  vary  in  quantity  or  duration,  as  it  may  also  in  respect  to  the 
time  of  enjoyment,  the  number  and  connection  of  the  tenants,  and 
the  provisoes,  conditions  and  limitations  under  which  it  is  held.  A 
seisin  of  land  should  never  be  pleaded,  but  of  an  estate  in  land.  This 
is  conclusively  shown  by  the  authorities.  {Van  Rensselaer  v. 
Foucher,  supra.)  The  quantity  of  an  estate  signifies  the  time  of 
continuance  or  degree  of  interest,  and  the  quality  of  an  estate  has  ref- 
erence to  the  manner  of  its  enjoyment,  as  whether  it  be  absolutely, 
solely,  in  common,  in  coparcenary,  or  in  joint  tenancy.  (1  Prest.  on 
Est.  21.)  In  some  cases  it  is  said  that  there  is  so  near  a  relation 
between  the  quantity  and  quality  of  an  estate,  that  the  quality  of 
the  estate  is  the  measure  of  its  quantity.  The  determinable  quality 
of  the  estate  is  marked  by  the  clause,  if  the  grantee  should  so  long 
live  ;  and  this  phrase  also  forms  part  of  the  quantity  or  measure  of 
the  estate.  {Id.  p.  22.)  Mr.  Preston  illustrates  it  more  fully  by 
putting  the  case  of  a  grant  to  a  man  and  his  heirs,  so  long  as  a  tree 
shall  stand.  In  this  instance,  he  observes,  that  the  words  which 
relate  to  the  tree  form  an  essential  part  of  the  measure  of  the  estate, 
and  at  the  same  time,  render  the  estate  a  determinable  fee,  (being 
its  quality,)  instead  of  being  an  absolute  fee.     {Id.) 

The  foregoing  observations  are  sufficient  by  way  of  introduction 
to  the  distribution  of  estates  under  the  provisions  of  the  revised  stat- 
utes of  1830.  (1  R.  S.  722,  et  seq.  3  id.  10,  et  seq.  5th  ed.)  The 
statute  recognizes  the  distinctions  between  the  quantity  and  tho 
quality  of  estates  ;  and  M-ith  a  view  to  simplify  the  subject  and  to 
incorporate  the  improvements,  in  their  proper  place,  it  adopts  from 
writers  of  approved  authority  the  classification  existing  in  the  com- 
mon law,  with  such  modifications  as  their  experience  and  wisdom 
had  pointed  out. 

The  first  six  sections  of  the  statute  relate  mainly  to  estates  with 
reference  to  their  quantity  of  interest.  Thus,  (§  1,)  estates  in  lands 
are  divided  into  estates  of  inheritance,  estates  for  life,  estates  for 
years,  and  estates  at  will  and  by  sufferance.  (§  2.)  Every  estate  of 
inheritance,  notwithstanding  the  abolition  of  tenures,  shall  continue 
to  be  termed  a  fee  simple,  or  fee  ;  and  every  such  estate,  when  not 
defeasible  or  conditional,  shall  be  termed  a  fee  simple  absolute,  or 
an  absolute  fee,  (§  3.)  All  estates  tail  are  abolished  ;  and  every 
estate  which  would  be  adjudged  a  fee  tail,  according  to  the  law  of 
this  state,  as  it  existed  previous  to  the  12th  day  of  July,  one  thou- 


FREEHOLDS  OF  INHERITANCE,  ABSOLUTE.  49 

sand  seven  hundred  and  eighty- two,  shall  hereafter  be  adjudged  a 
fee  simple  ;  and  if  no  valid  remainder  be  limited  thereon,  shall  be  a 
fee  simple  absolute.  (§  4.)  Where  a  remainder  in  fee  shall  be  lim- 
ited upon  any  estate,  which  would  be  adjudged  a  fee  tail,  according 
to  tile  law  of  this  state,  as  it  existed  previous  to  the  time  mentioned 
in  the  last  section,  such  remainder  shall  be  valid  as  a  contingent 
limitation,  upon  a  fee,  and  shall  vest  in  possession  on  the  death  of 
the  first  taker,  without  issue  living,  at  the  time  of  such  death. 
(§  5.)  Estates  of  inheritance  and  for  life  shall  continue  to  be  denom- 
inated estates  of  freehold  ;  estates  for  years  shall  be  chattels  real ; 
and  estates  at  will  or  by  sufferance  shall  be  chattel  interests,  but 
shall  not  be  liable  as  such  to  sale  on  executions.  (§  6.)  An  estate 
during  the  life  of  a  third  person,  whether  limited  to  heirs  or  other- 
wise, shall  be  deemed  a  freehold  during  the  life  of  the  grantee  or 
devisee,  but  after  his  death  it  shall  be  deemed  a  chattel  real. 

The  essential  characteristics  of  a  freehold  estate  are  1.  Immohil- 
ity,  the  subject  matter  must  be  either  in  the  land,  or  some  interest 
issuing  out  of  or  annexed  to  land.  2.  A  sufficient  legal  indeterm- 
inate duration,  for  if  the  utmost  period  of  time  to  which  an  estate 
can  last  is  fixed  and  determined,  it  is  not  an  estate  of  freehold. 
(2  Bl.  Com.  386.     1  Cruise,  tit.  I,  p.  45.) 

Hence,  the  primary  division  of  freehold  estates  is  into  freehold 
estates  of  inheritance,  and  into  freehold  estates  not  of  inheritance. 

Section  I. 
Of  freeholds  of  inheritance — absolute. 

Under  the  New  York  revised  statutes,  every  freehold  of  inherit- 
ance must  either  be  an  estate  in  fee  simple  absolute,  or  a  defeasible 
or  conditional  fee.  Tenant  in  fee  simple  is  {according  to  Littleton, 
§  1,)  he  which  hath  lands  or  tenements  to  hold  to  him  and  his  heirs 
forever.  An  estate  in  fee  simple  is  the  entire  and  absolute  interest 
and  property  in  the  land  ;  from  which  it  follows  that  no  one  can 
have  a  greater  estate.  (1  Cruise's  Dig.  p.  59.)  It  was  essential  at 
common  law  that  the  word  heirs  should  be  inserted  in  the  convey- 
ance in  order  to  create  an  estate  in  fee  simple.  For  if,  says  Little- 
ton, a  man  purchase  by  these  words,  to  have  and  to  hold  to  him 
forever;  or  by  these  words,  to  have  and  to  hold  to  him  and  his 
assigns  forever ;  in  these  two  cases  he  hath  but  an  estate  for  term 

Will.— 4 


50  ESTATE  IN  FEE  SIMPLE. 

of  life,  for  the  lack  of  these  words,  Ms  heirs,  which  words  only  make 
an  estate  of  inheritance.  This  strictness  of  the  common  law  has 
been  abrogated  in  this  state.  The  term  heirs,  or  other  words  of  inher- 
itance have  not,  since  1830,  been  requisite  to  create  an  estate  in  fee. 
On  the  contrary,  every  grant  or  devise  of  real  estate,  or  any  interest 
therein,  executed  after  the  first  of  January,  1830,  is  made  adequate 
to  pass  all  the  estate  or  interest  of  the  grantor  or  testator,  unless 
the  intent  to  pass  a  less  estate  or  interest  appears  by  express  terms, 
or  is  necessarily  implied  in  the  terms  of  the  grant.  And  it  is  made 
the  duty  of  the  courts,  in  the  construction  of  every  instrument  cre- 
ating or  conveying,  or  authorizing  the  creation  or  conveyance,  of  any 
estate  or  interest  in  lands,  to  carry  into  eiFect  the  intent  of  the  part- 
ies, so  far  as  such  intent  can  be  collected  from  the  whole  instrument 
and  is  consistent  with  the  rules  of  law.  (1  B.  S.  748.  3  id.  38, 
§§  1,  2,  5th  ed.) 

The  great  nicety  of  the  common  law  with  respect  to  the  insertion 
of  the  word  heirs,  in  order  to  vest  a  fee,  is  said  to  have  been  a  relic 
of  the  feudal  strictness.  (2  Black.  Com.  107.)  It  was  never  re- 
quired in  the  transfer  of  personal  property,  and  the  rigor  of  the  rule 
had  been  greatly  relaxed  in  the  constructions  of  wills ;  the  courts 
accejiting  in  lieu  of  those  words,  any  equivalent  expressions,  plainly 
denoting  an  intention  to  pass  a  fee.  The  statute  places  deeds,  in 
this  respect,  upon  the  same  footing  as  wills,  and  allows  the  intention 
of  the  parties  to  be  gathered  from  other  language.  The  change  thus 
introduced  into  our  conveyances  had  previously  been  adopted  in  other 
states,  and  it  is  now  a  part  of  the  jurisprudenc(5  of  more  than  half 
the  states  of  the  union.  It  is  the  rule  which  hp-s  always  prevailed 
in  the  civil  law. 

An  estate  in  fee  simple  is  the  entire  and  absolute  interest  and 
property  in  the  land.  Hence  it  follows  that  no  one  can  have  a 
greater  estate.  And  he  who  has  granted  an  estate  in  fee  simple  has 
no  farther  interest  remaining  in  him.  Such  an  estate,  however,  may 
be  granted  upon  condition,  and  in  numerous  instances  a  fee  simple 
may  be  rendered  defeasible  on  the  happening  of  some  future  event. 

The  owner  of  the  fee  simple  has  the  entire  control,  as  such,  of  all 
houses  and  other  buildings  erected  on  the  premises,  and  of  all  tim- 
ber and  other  trees  growing  thereon.  He  is  entitled  to  all  mines  of 
metal,  except  gold  and  silver,  and  to  dig  up  and  dispose  of  all  min- 
erals and  fossils  which  are  under  the  land.     (1  Cruise's  Dig.  60.) 

The  right  to  mines  of  gold  and  silver  belonged,  at  common  law,  to 


ESTATES  IN  FEE  SIMPLE.  5I 

the  sovereign,  and  in  this  state,  by  statute,  it  is  reserved  to  the  peo- 
ple in  their  right  of  sovereignty.  {Plowden,  336.  Seaman  v.  Vaw- 
drey,  16  Vesey,  393.  1  Black.  Com.  307.  1  R.  S.  281,  684,  5th 
ed.)  Numerous  questions  with  respect  to  the  right  to  mines  of  the 
precious  metals,  have  arisen  in  those  states  in  which  those  mines  are 
found,  but  the  consideration  of  them  does  not  seem  appropriate  to 
the  present  treatise.  All  inferior  estates  and  interests  in  land  are 
derived  out  of  the  fee  simple.  It  is  on  this  ground  that  when  a 
limited  estate  vests  in  the  same  person  who  has  the  fee  simple  of  the 
same  land,  the  particular  estate  is  merged  in  the  fee,  upon  the  prin- 
ciple that  omne  majus  continet  in  se  m  inus.  The  doctrine  of  merger, 
which  will  hereafter  be  considered,  has  its  origin  in  this  principle! 
(1  Cruise's  Dig.  61.     Roberts  v.  Jackson,  1  Wend.  478.) 

Thepoioer  of  alienation  is  an  inseparable  incident  to  an  estate  in 
.  fee  simple.  Hence,  any  general  restriction  of  this  power  annexed  to 
the  creation  of  such  an  estate  is  absolutely  void,  and  of  no  effect. 
(1  Cruise's  Dig.  63.)  In  DePeyster  v.  Michael,  (2  Seld.  467,) 
the  court  of  appeals  held  that  a  reservation,  in  a  conveyance  in  fee, 
of  a  pre-emptive  right  of  purchase  by  the  grantor,  his  heirs,  &c.,  in 
every  case  of  sale  by  the  grantee,  his  heirs  or  assigns,  and  the  reserv- 
ation, by  the  grantor,  of  a  right  or  portion  of  the  sale  money  or  cash 
sale  by  the  grantee  &c.  are  void  as  being  repugnant  to  the  estate 
granted,  and  illegal  restraints  upon  the  power  of  alienation.  By  the 
common  law,  restraint  upon  the  alienation  of  lands  could  only  be 
imposed  by  persons  having  the  reversion,  or  at  least  Si  possibility  of 
reversion.     {Id.) 

The  power  of  alienation  necessarily  implies  the  existence  of  infe- 
rior powers.  As  the  owner  may  convey  the  whole,  so  he  may  grant  out 
ot  it,  while  he  is  the  absolute  owner,  smaller  interests,  retainino-  in 
himself  the  reversion.  He  may  thus  lease,  for  a  term  of  years,  the 
whole  or  any  portion  of  it ;  he  may  charge  it  with  debts  or  legacies, 
or  both ;  and  he  may  dispose  of  it  by  will  if  he  continues  the  owner 
till  his  death.  If  he  fails  to  make  a  testamentary  disposition  of  it 
by  a  will  executed  in  conformity  to  law,  it  descends  to  his  heirs. 

A  freehold  of  inheritance  is  subject  to  the  dower  of  the  wife,  and 
the  curtesy  of  the  husband.  These  estates  will  be  noticed  in  their 
proper  places. 

This  estate  also  is  liable  to  the  debts  of  the  owner  on  his  death 
and  it  may  be  charged  in  his  will  with  the  payment  of  debts  and 
legacies,  or  of  either. 


52  FREEHOLD  OF  INHERITANCE  DEFEASIBLii. 

It  will  be  more  convenient  to  postpone  until  we  come  to  treat  of 
deeds  and  leases,  the  consideration  of  the  terms  by  which  a  fee  will 
pass,  and  the  constitutional  restraint  imposed  upon  the  granting  of 
farm  leases  for  a  longer  j)eriod  than  twelve  years. 

Section  II. 
Of  freeholds  of  inheritance  defeasible  or  conditional. 

The  revised  statutes  evidently  recognize  defeasible  or  condi- 
tional fees  as  existing  estates. 

At  common  law,  estates  of  inheritance  which  were  not  absolute, 
were  of  two  sorts :  1,  Qualified  or  base  fees ;  and  2d.  Fees  condi- 
tional, so  called;  and  afterwards  fees  tail  in  consequence  of  the 
statute  de  donis.     {Stat,  of  Weston.  2.     13  Ediv.  1.) 

At  an  early  day  it  became  customary  to  make  donations  of  land, 
restraining  them  to  some  particular  heirs  of  the  donee,  exclusive  of 
others ;  as  to  the  heirs  of  a  man's  body,  in  exclusion  of  collateral 
kindred  ;  or  to  the  heirs  male  of  his  body,  in  exclusion  both  of  collat- 
eral heirs,  and  of  lineal  female  heirs.  The  strong  tendency  of  the 
courts  to  favor  the  alienation  of  the  estate  led  them  to  construe  lim- 
itations of  this  kind  into  estates  upon  condition,  and  to  apply  to 
them  the  maxim  of  the  common  law  that  when  a  condition  is  once 
performed,  it  is  thenceforth  entirely  gone ;  and  the  estate  to  which  it 
was  annexed  as  absolute  and  unconditional.  Upon  this  mode  of 
reasoning  the  judges  held  that  these  estates  were  conditional  fees, 
depending  upon  the  leaving  heirs  of  the  particular  class  named  in 
the  grant.  Hence,  it  followed  that  upon  the  leaving  issue  born,  the 
estate  became  absolute,  at  least  so  far  that  the  owner  could  alien  the 
land  and  thus  bar  his  issue  and  the  donor  of  his  right  of  reverter, 
subject  the  estate  to  forfeiture  for  treason,  and  enable  him  to  charge 
it  with  rents  and  other  incumbrances,  which  would  be  available 
against  his  issue. 

This  mode  of  construing  conditional  fees  defeated  the  object 
which  they  were  intended  to  accomplish.  This  induced  the  nobility, 
who  were  desirous  of  perpetuating  their  possession  in  their  own 
families  to  procure  the  enactment  of  the  Statute  of  West.  2,  ISEdio.  1, 
before  adverted  to,  and  which  is  usually  called  the  statute  de  donis, 
requiring  "  the  will  of  the  giver,  according  to  the  form  of  the  deed 
of  gift  manifestly  expressed,  to  be  observed,  so  that  they  to  whom  a 
tenement  was  so  given  under  a  condition  should  not  have  power  to 


ESTATE  TAIL.  53 

alien  the  same  tenement,  whereby  it  should  not  remain  after  the 
death  of  the  donees,  to  their  issue,  or  to  the  donor  or  his  heirs  if 
issue  failed."  This  statute,  as  was  observed  by  Lord  Mansfield,  in 
his  elaborate  opinion  in  Taylor  v.  Horde,  (1  Burr.  60,  115,)  only 
repeated  what  the  law  of  tenure  said  before,  that  "the  tenor 
of  the  grant  should  be  observed."  It  rejected  the  erroneous  opinion 
which  had  been  expressed  by  the  judges  that  a  donation  of  this  kind 
created  a  conditional  fee ;  and  declared  that  it  vested  an  estate  of 
inheritance  in  the  donee,  and  some  particular  heirs  of  his,  to  whom 
it  must  descend  notwithstanding  any  act  of  the  ancestor,  and  that 
the  estate  of  the  donor  is  a  reversion  expectant  on  the  determination 
of  that  estate.     (Id.) 

An  estate  tail  may  be  described  to  be  an  estate  of  inheritance, 
deriving  its  existence  from  the  statute  de  donis,  which  is  descendible 
to  some  particular  heir  only  of  the  person  to  whom  it  is  granted, 
and  not  to  his  heirs  general.  It  was  of  two  kinds ;  tenant  in  tail 
general  and  tenant  in  tail  special.  The  first  was  when  lands  were 
given,  to  a  man  and  the  heirs  of  his  body,  without  any  further 
restriction ;  and  the  second  when  the  gift  was  restrained  to  certain 
heirs  of  the  donee's  body,  exclusive  of  others,  as  when  lands  are 
given  to  a  man  and  the  heirs  of  his  body,  on  Elizabeth  his  present 
wife,  to  be  begotten.  Thus  also,  the  estate  might  be  limited  to  the 
heirs  male  of  the  body  of  the  donee,  which  was  called  an  estate  in 
tail  male,  or  to  the  heirs  female  of  his  body,  called  an  estate  in  tail 
female. 

In  all  cases  of  entailment  limiting  the  lands  to  a  particular  class 
of  heirs,  no  descendant  of  the  donee  could  inherit  unless  he  could 
deduce  his  title  through  that  particular  class  of  heirs  to  which  the 
succession  of  the  land  was  limited. 

This  species  of  estate  was  only  predicable  of  what  partook  of  the 
'nature  of  real  'property ,  whether  corporeal  or  incorporeal.  It  was  sub- 
ject to  many  of  the  incidents  of  estates  in  fee  simple  absolute.  The 
tenant  had  a  right  to  commit  every  kind  of  waste.  The  estate  was 
subject  to  the  curtesy  of  the  husband,  and  the  dower  of  the  wife. 
The  estate  might,  at  common  law,  be  discontinued  by  five  different 
modes  of  conveyance  ;  and  it  might  be  barred  by  a  common  recovery. 

This  species  of  estate  was  not  uncommon  in  this  state  before  and 
after  the  revolution  until  it  was  abolished  in  1782.  The  act  of 
1786,  (1  Greenl.  205,)  while  it  abolished  that  estate,  enacted  "  that 
when  any  person  now  is  or  are,  or  would  but  for  the  act  of  1732 


54  DEFEASIBLE  ESTATES. 

therein  repealed,  be  now  seised  in  fee  tail  of  any  lands,  tenements  or 
hereditaments,  such  person  shall  be  now  deemed  to  be  seised  of  the 
same  in  fee  simple  absolute."  These  two  statutes,  to  wit,  of  1782 
and  1786,  operated  as  well  upon  vested  remainders  in  tail  as  upon 
estates  tail  which  had  taken  effect  in  possession.  ( Vanderheyden 
V.  Crandall,  2  Denio,  9,  affirmed  1  Comst.  491.  Van  Rensselaer  v. 
Poucher,  5  Den.  35.)  The  provision  in  the  revised  statutes  (1  B.  S. 
722,  §  3)  which  declares  that  every  estate  which  would  be  adjudged 
a  fee  tail  before  the  statutes  abolishing  entails,  shall  hereafter  be  ad- 
judged a  fee  simple,  is  not  more  comprehensive  in  its  effects  than 
the  former  statutes,  but  is  simply  declaratory  of  the  then  existing 
law.     (  Van  Rensselaer  v.  Poucher,  supra.") 

But  estates  in  fee  tail  having  been  so  long  abolished,  are  of  little 
interest  to  the  reader.  In  this  state  and  probably  in  others,  they 
are  converted  into  estates  in  fee  simple  absolute,  and  the  learning 
concerning  them  is  of  little  practical  value.  In  some  states,  they 
never  formed  a  part  of  their  jurisprudence.  The  prevailing  opinion 
iu  this  country  is  adverse  to  the  policy  which  entailments  are  calcu- 
lated to  cherish.  The  free  and  unrestricted  alienation  of  property 
is,  on  the  whole,  more  conducive  to  the  advancement  of  society, 
than  the  accumulation  of  large  masses  in  the  hands  of  a  favored  few. 

There  are  some  defeasible  and  conditional  estates  in  fee,  which 
have  not  been  abrogated  by  the  revised  statutes.  A  limitation  to  a 
man  and  his  heirs  so  long  as  he  shall  have  issue  of  his  body  ;  or  till 
a  person  at  Rome  shall  return  from  Rome,  or  till  a  person  shall  go 
to  Rome :  or  during  the  time  while  a  particular  tree  shall  stand,  or 
till  default  shall  be  made  in  the  payment  of  his  debts,  or  so  long  as 
St.  Paul's  Church  shall  stand,  are  instances  of  this  species  of  estate. 
(1  Preston  on  Estates,  432  et  seq.)  Even  in  wills  it  is  said  that  a 
devise  to  a  man  and  his  heirs,  till  debts  are  paid,  passes  the  fee,  and 
not  a  chattel  interest,  except  under  special  circumstances. 

These  estates  are  of  rare  occurrence,  except  in  the  case  of  securi- 
ties by  way  of  mortgage,  which  will  be  treated  of  in  a  subsequent 
part  of  this  essay. 

As  no  one  can  transfer  to  another  a  greater  estate  than  he  him- 
self posseses  in  the  subject  of  the  grant,  the  owner  of  a  determinable 
fee  cannot,  by  a  conveyance  thereof  to  a  man  and  his  heirs  generally, 
without  restriction,  enlarge  the  determinable  fee  into  a  fee  simple. 
The  grantee  would  take  only  such  estate  as  the  grantor,  at  the  time 


FREEHOLDS  NOT  OF  INHERIT^iNCE.  55 

of  the  conveyance,  enjoyed.  (1  E.  S.  739,  §  143.  Sage  v.  Cart- 
wright,  5  Seld.  52.) 

A  determinable  fee  may  become  absolute  and  simple  without  any 
further  conveyance.  Should  an  estate  be  limited  to  A.  and  his  heirs 
until  the  marriage  of  B.,  and  B.  should  die  unmarried,  the  estate  in 
A.  would  become  an  estate  in  fee  simple  absolute.  The  event  on 
which  the  determination  of  the  estate  depended,  having  become  im- 
possible by  the  act  of  God,  viz.,  the  death  of  B.  before  marriage,  the 
period  for  the  determination  of  the  estate  can  never  arise.  For  that 
reason  the  estate  will  last  forever,  in  the  same  manner,  as  if  no  col- 
lateral limitation  had  given  to  it  a  determinable  quality. 

The  foregoing  observation  is  referable  only  to  a  class  of  cases  in 
which  the  event  on  which  the  estate  is  limited,  may  become  impossi- 
ble, and  therefore  can  never  happen.  It  does  not  apply  to  those 
cases  where,  as  in  the  case  of  an  estate  until  a  tree  shall  fall,  an 
event  is  fixed  as  the  termination  of  the  estate,  which  must  happen 
some  time  or  other  in  the  course  of  nature.  In  this  latter  case,  the 
reversion  or  remainder  expectant  on  the  estate,  or  the  possibility  of 
reversion  which  is  left  in  the  grantor,  may,  by  a  release  or  other 
proper  assurance,  be  conveyed  to  the  owner  of  the  determinable  fee, 
and  thus  make  him  the  owner  of  a  fee  simple  absolute. 

The  conditional  fees  at  the  common  law,  as  they  existed  prior  to 
the  statute  de  donis,  have  in  general  shared  the  fate  of  estates  in 
fee  tail,  and  are  scarcely  known  in  our  jurisprudence.  They  have 
been  succeeded  by  executory  limitations  which  will  hereafter  be  no- 
ticed. The  revised  statutes  have  enacted  that  every  person  holding 
lands  (except  idiots,  persons  of  unsound  mind  and  infants)  seised  of 
or  entitled  to  any  interest  in  lands,  may  alien  such  estate  or  interest 
at  his  pleasure,  with  the  effect  and  subject  to  the  restriction  and 
regulations  provided  by  law.  (1  B.  S.  719,  §  10.  DePeyster  v. 
Michael,  2  Seld.  467.  The  Albany  Ins.  Co.  v.  Bay,  4  Comst.  9. 
1  B.  L.  70,  §  1.    Id.  74,  §  5.) 

Section  III. 

Of  freeholds  not  of  inheritance. 

Under  the  definition  of  the  term  freehold  estate,  in  a  preceding 
page,  {p.  115,)  an  estate  for  life  in  lands  is  a  freehold  interest.  It 
is  of  two  sorts,  1,  such  as  is  created  expressly  by  deed  or  other  legal 
assurance,  and  2,  such  as  is  derived  from  the  operation  of  law..    Ua- 


56  ESTATES  FOR  LIFE. 

der  the  first  head  are  Ist,  an  estate  for  the  life  of  the  tenant,  and 
2d,  an  estate  for  the  life  of  another  person,  or  persons.  Under  the 
second  general  head  are  embraced,  1st,  an  estate  by  the  curtesy  of 
England,  and  2d,  an  estate  in  dower. 

We  shall  treat  of  these  different  estates  in  the  present  section. 

1.  Of  on  estate  for  the  life  of  the  tenant  created  hj  the  act  of  the 
parties.  This  estate  is  created  when  a  deed  of  land  is  given  to  a 
man  in  express  terms  for  the  term  of  his  life.  At  common  law  a 
grant  of  land  to  a  man  forever,  conveyed  only  a  life  interest,  if  the 
word  "heirs"  was  omitted.  {Litt.  lib.  1,  §  1.)  But  since  the  re- 
vised statutes  have  dispensed  with  the  term  "  heirs  "  and  permitted 
the  intention  to  pass  a  fee  to  be  gathered  from  the  language  of  the 
instrument,  (1  B.  S.  748,)  it  is  necessary,  in  order  to  create  an  estate 
for  the  life  of  the  grantee,  that  the  intention  to  create  such  estate 
should  be  expressed  in  the  conveyance. 

Formerly,  such  an  estate  might  be  created  whenever  the  grantor 
■was  the  owner  of  the  fee  simple.  But  now,  by  the  constitution  of 
1846,  article  1,  §  14,  it  is  provided  that  no  lease  or  grant  of  agricul- 
tural land  for  a  longer  period  than  twelve  years  thereafter  made,  in 
which  shall  be  reserved  any  rent  or  service  of  any  kind,  shall  be 
valid.  This  provision  owed  its  origin  to  the  antirent  excitement 
which  at  that  period  prevailed  to  a  great  extent  in  certain  parts  of 
the  state,  and  the  object  was  to  prevent  long  terms  of  farm  leases, 
reserving  rent,  from  being  made.  The  prohibition  does  not  apply 
to  urban  property,  but  to  that  which  is  strictly  agricultural ;  and 
it  does  not  apply  to  the  latter,  if  no  rent  or  other  service  is  reserved 
in  the  conveyance. 

In  general,  this  species  of  estate  for  life  will  endure  as  long  as  the 
life  or  lives  for  which  it  was  granted.  There  are  some  exceptions 
to  this  rule.  Thus  it  may  be  determinable  upon  an  event  which 
happens  before  the  death  of  tenant  for  life.  Thus  an  e^state  to  a 
■woman  so  long  as  she  remains  unmarried,  or  to  a  man  and  woman 
during  coverture,  or  so  long  as  the  grantee  shall  dwell  in  a  particu- 
lar house,  are  estates  for  the  life  of  the  grantee,  but  are  determina- 
ble on  the  happening  of  these  events.  (1  Inst.  42.)  Hence,  in  the 
above  cases,  if  the  woman  marries,  or  the  coverture  ceases  by  death 
or  otherwise,  or  the  grantee  ceases  to  dwell  in  the  particular  house, 
the  life  estate  of  the  grantee  terminates  before  his  death.     {Id.) 

An  estate  for  one's  own  life  is  of  more  value  than  an  estate  for  tlu> 


ESTATE  PUR  AUTER  VIE.  57 

life  of  another.  A  tenant  for  life  may  alien  liis  estate,  but  his 
grantee  then  becomes  a  tenant  for  the  life  of  his  grantor.  This  re- 
sults from  the  principle  that  no  man  can  grant  a  greater  estate  than 
he  possesses ;  and  as  he  has  an  estate  only  for  his  own  life,  his 
grantee  becomes  the  tenant  pur  auter  vie. 

As  the  incidents  of  a  tenancy  for  life  are  substantially  the  same  in 
all  cases,  we  shall  postpone  an  enumeration  of  them  to  the  close  of 
this  section. 

2.  Of  the  estate  for  the  life  of  another,  usually  denominated  an 
estate  pur  autcr  vie.  This  estate  is  at  common  law  an  estate  of 
freehold.  It  may  be  created  by  express  words  of  limitation,  or  by 
the  alienation  by  a  tenant  for  his  own  life.  The  incidents  cf  this 
estate  are  the  same  as  those  of  other  life  estates,  and  will  be  here- 
after noticed.  By  the  revised  statutes,  in  the  chapter  in  relation  to 
wills  and  testaments,  and  of  the  distribution  of  the  estates  cf  de- 
ceased persons,  and  of  the  rights,  powers  and  duties  of  executors  and 
administrators,  estates  held  by  the  deceased  for  the  life  of  another 
person  are  declared  to  be  assets,  and  directed  to  go  to  the  executors 
or  administrators  to  be  applied  and  distributed  as  part  of  the  per- 
sonal estate  of  the  testator  or  intestate,  and  to  be  included  in  the 
inventory  thereof  (2  B.  S.  82.)  An  estate  during  the  life  of  a 
third  person,  whether  limited  to  heirs  or  not,  is  deemed  a  freehold 
only  during  the  life  of  the  grantee  or  devisee,  but  after  his  death,  a 
chattel  real.  (1  B.  S.  722,  §  5.  Eosehoom  v.  Van  Vechten,  5  De~ 
nio,  414.) 

A  lease  granted  by  the  tenant  pur  auter  vie,  will  cease  on  the 
death  of  the  cestui  que  vie,  and  not  on  his  own  death. 

At  common  law,  where  lands  were  given  to  A.  for  the  life  of  B., 
if  A.  or  his  assignee  happened  to  die  in  B.'s  lifetime,  the  estate  be- 
longed to  the  first  person  who  took  possession,  whoever  he  might 
be  ;  and  such  person  was  called  an  occupant.  But  if  the  gift  were 
to  A.  and  his  heirs  for  the  life  of  B.,  or  if  A.  in  the  former  case  had 
assigned  his  estate  to  another  person  and  his  heirs,  this  title  by  oc- 
cupancy was  precluded.  The  heir  indeed  who  succeeded  to  such  an 
estate  was  commonly  called  a  special  occupant.  The  statute  29 
Charles  2,  ch.  3,  §  12,  declares  those  estates  pur  auter  vie  to  which 
the  heir  does  not  succeed  as  special  occupant  to  be  assets.  If  the 
heir  took  as  special  occupant  then  they  became  assets  in  his  hands. 
Our  former  statute  concerning  wills  (1  R.  L.  365,  §  4)  made  no  such 


58  ESTATE  BY  THE  CURTESY. 

exception,  but  allowed  the  estate  to  be  devisable  by  last  will  and 
testament ;  and  if  no  such  devise  thereof  ivas  made,  the  same  or  so 
much  thereof  as  was  not  devised  was  directed  to  go  to  the  executor 
or  administrator,  of  the  party  who  had  the  estate,  to  be  applied  and 
distributed  as  part  of  the  personal  estate.  Such  was  the  law  prior 
to  the  revised  statutes  of  1830  ;  and  by  the  latter,  the  estate  was 
made  assets  in  the  hands  of  the  executor  or  administrator,  whether 
devised  by  the  testator  or  not.  (2  R.  8.  82,  §  6,  suhd.  1.  Rose- 
hooni  V.  Van  Vechten,  supra.) 

3.  ITie  third  species  of  estate  for  life  is  an  estate  by  the  curtesy. 
It  is  thus  described  by  Littleton,  §  35  :  "  When  a  man  taketh  a 
wife  seised  in  fee  simple,  or  in  fee  tail  general,  or  seised  as  heir  in  spe- 
cial tail  and  hath  issue  by  the  same  wife,  male  or  female  born  alive  ; 
albeit  the  issue  after  dieth  or  liveth,  yet  if  the  wife  dies,  the  husband 
shall  hold  the  land  during  his  life  by  the  law  of  England."  The 
conversion  in  this  state  of  estates  in  fee  tail  into  estates  in  fee  sim- 
ple, modifies,  but  does  not  impair,  the  above  definition.  Although 
this  estate  has  not  been,  like  the  estate  in  dower,  declared  by  stat- 
ute, it  has  been  repeatedly  recognized  by  the  courts  of  this  state  as 
an  existing  estate.  (Jackson  v,  Johnson,  5  Coiuen,  74-95.  Duns- 
comb  V.  Dunscomb's  Executors,  1  John.  Ch.  R.  508.  Jackson  v. 
JSellick,  8  Joh7i.  Rep.  262.  Jackson  v.  Gilchrist,  15  id.  89.  Adair 
V.  Lott,  3  Hill,  182.  Ellsivorth  v.  Cook,  8  Paige,  643.  Matter  of 
Cregier,  1  Barb.  Ch.  R.  598.  Schermerhorn  v.  Miller,  2  Coioen, 
439.     Jackson  v.  Mancius,  2  Wend,  357.     1  R.  S.  754,  §  20.) 

The  supreme  court  at  an  early  day  recognized  Littleton's  descrip- 
tion of  the  estate,  by  which  it  appears  that  four  things  belong  to 
the  estate,  viz.  marriage,  seisin  of  the  wife,  issue  and  death  of  the 
wife.  They  admit  that  it  is  not  necessary  that  all  these  should 
concur  together  at  one  and  the  same  time ;  and  therefore  if  a  man 
taketh  a  woman  seised  of  lands  in  fee  and  is  disseised,  and  then 
havo  issue,  and  the  wife  die,  he  shall  enter  and  hold  by  the  curtesy. 
So  if  he  hath  issue  which  dieth  before  the  descent.  {Jackson  v. 
Johnson,  5  Cowen,  95.) 

T'he  marriage  must  be  a  legal,  valid  marriage,  between  parties 
able  to  enter  into  the  contract.  The  seisin  required  by  the  English 
V'Ocks,  must  be  a  seisin  in  deed.  (1  Inst.  29  a.)  But  the  courts  of 
this  state  have  held  that  when  a  feme  covert  is  the  owner  of  wild  and 
Untoultivated  land,  she  is  considered  in  law,  as  in  fact,  possessed  so 


ESTATE  BY  THE  CURTESY.  59 

as  to  enable  her  husband  to  become  a  tenant  by  the  curtesy.  An 
actual  entry  or  pedis  possessio  by  the  wife  or  husband  during  the 
coverture,  is  not  requisite  to  the  completion  of  a  tenancy  by  the 
curtesy.  (Jackson  v.  Sellick,  8  John.  262.  So.me  v.  Gilchrist^  15 
id.  89.)  The  time  when  the  seisin  commences,  whether  upon  or 
after  issue  had,  is  immaterial ;  for  if  a  man  marries  a  woman  seised 
in  fee,  is  disseised,  and  then  has  issue,  and  the  wife  dies,  he  shall 
enter  and  hold  by  the  curtesy.  So  if  he  has  issue  which  dies  before 
the  descent  of  the  lands  on  the  wife,  (1  Inst.  30  a.)  The  issue 
must  be  born  alive  in  the  lifetime  of  the  wife ;  and  therefore  if  she 
dies  in  childbed,  and  the  issue  is  taken  out  of  the  womb  by  the 
C^esarean  operation,  the  husband  will  not  be  entitled  to  curtesy. 
{Per  Walworth,  Ch.,  Marsellis  v,  Thalhimer,  2  Paige,  35. 
1  Cruise  Dig.  152,  Greenl.  ed.)  The  last  circumstance  required  to 
give  a  title  to  curtesy  is  the  death  of  the  wife,  by  which  the  estate 
of  the  husband  becomes  consummate,     (1  Inst.  30,  a.) 

With  regard  to  the  persons  capable  of  acquiring  this  estate,  it  is 
sufficient  to  observe  that  all  persons  capable  of  taking  a  freehold 
estate  may  be  tenants  by  the  curtesy. 

There  is  some  conflict  in  the  decisions  of  our  courts  with  regard 
to  the  eflFect  which  the  statutes  relative  to  the  estates  of  married 
women  have  on  the  curtesy  of  the  husband,  and  therefore  a  few  re- 
marks will  be  added.  The  act  of  1848,  ch.  200,  p,  307,  enacts  that 
"the  real  and  personal  pro})erty  of  any  female  who  may  hereafter 
marry,  and  which  she  shall  own  at  the  time  of  marriage,  and  the 
rents,  issues  and  profits  thereof  shall  not  be  subject  to  the  disposal 
of  her  husband  nor  l)e  liable  for  his  debts,  and  shall  continue  her 
sole  and  separate  property  as  if  she  were  a  single  woman."  The 
second  section  applies  the  same  principle  to  females  "who  were 
married  at  the  time  of  the  ])assing  of  the  act.  The  third  section 
as  amended  by  the  law  of  1849,  ch.  375,  p,  528,  enacts  that  any 
married  female  may  take  by  inheritance  or  by  gift,  grant,  devise  ot 
bequest,  from  any  person  other  than  her  husband,  and  hold  to  her 
sole  and  separate  use  and  convey  and  devise  real  and  personal  prop- 
erty, and  any  interest  or  estate  therein,  and  the  rents,  issues  and 
profits  thereof,  in  the  same  manner  and  with  the  like  effect  as  if 
she  were  unmarried ;  and  the  same  shall  not  be  subject  to  the  dis- 
posal of  the  husband  nor  be  liable  for  his  debts, 

A  learned  judge  of  the  supreme  court  of  the  first  district,  in 
1854,  intimated  at  special  term  that  the  efi'ect  of  the  foregoing 


60  ESTATE  BY  THE  CURTESY. 

statutes  was  to  deprive  the  husband  of  curtesy  in  the  land  of  the 
■wife.     {Benedict  v.  Seymour,  11   Hoiv.   179.)     This  intimation  is 
elaborately  reasoned  out  by  another  learned  judge  (Potter)  in  Bil- 
lings V.  Baker,  (28  Barb.  343,)  decided  at  general  term  in  the  4th 
district  in  1859,  and  a  majority  of  that  court  held  that  the  effect 
of  those  statutes  was  entirely  to  abrogate  the  existence  of  prospective 
tenancy  by  the  curtesy ;  and  in  short  that  every  quality  and  incident 
that  are  necessary  to  constitute  a  tenancy  by  the  curtesy  are  destroyed 
by  the  provisions  of  these  acts.     {S.  C.  15  Hoio.  525.)     But  the  doc- 
trine of  this  case  was  strongly  questioned  by  the  learned  judge 
(Sutherland)  who  delivered  the  opinion  of  the  general  term  of  the  su- 
preme court  in  the  1st  district,  in  the  same  year,  in  VaUan'ce  v.  Bausch, 
(28  Barb.  633,  642.)     And  the  supreme  court  in  special  term  in  the 
6th  district  in  1850,  held  expressly  that  the  husband's  estate  by  the 
curtesy  was  not  taken  away  by  those  statutes  in  the  lands  of  which 
the  wife  died  seised  ;  and  this  doctrine  was  concurred  in  by  a  learned 
justice  in  the  8th  district  at  special  term,  in  1857,  in  Clao-k  v.  Clark, 
(24  Barb.  581.)     The  court,  speaking  of  cases  where  the  wife  took 
the  estate  during  coverture,  thought  that  if  she  failed  to  convey  or 
devise  the  land,  and  thus  died  seised,  the  husband  would  be  entitled 
to  curtesy  as  before  the  passage  of  those  laws.     If  the  wife  was 
seised  of  the  land  before  coverture,  the  statutes  afford  no  ground 
to  suppose  that  the  husband's  right  to  curtesy  is  impaired.     It  is 
only  with  respect  to  lands  which  she  acquires  during  coverture  by 
inheritance,  gift,  grant  or  devise,  that  there  is  any  color  for  suppos- 
ing that  the  husband's  right  to  curtesy  is  taken  away.     The  weight 
of  authority  at  present  is  against  the  position  that  curtesy  is  taken 
away  by  those  statutes.     We  cannot  speak  decisively  upon  the  sub- 
ject until  the  question  shall  have  been  definitively  settled  by  the 
court  of  appeals.     The  protection  of  the  rights  of  married  women 
does  not  require  that  the  right  of  the  husband  to  curtesy  —  an  es- 
tate which  is  only  consummated  by  the  death  of  the  wife  —  should 
be  abrogated.     Had  the  legislature  intended  a  change  so  radical, 
they   would   have,    doubtless,    expressed   it    in    unequivocal    lan- 
guage.    The  claim  to  curtesy,  like  the  claim  to  dower  by  the  wife, 
springs  out  of  the  positive  institutions  of  society,   which  may,  in- 
deed, be  changed  or  destroyed  in  both  cases  according  to  the  dictates 
of  justice  and  public  policy.     The  legislature  might  well  secure  the 
real  estate  of  the  wife  during  her  lifetime,  Avhether  owned  by  her 
before  marriage,  or  derived  by  her  afterwards  by  inheritance,  gift  or 


ESTATE  BY  THE  CURTESY— DOWER.  61 

devise,  from  the  control  of  her  husband  during  her  life.  They 
have  done  it  only  in  a  qualified  manner,  in  regard  to  property  ac- 
quired after  the  marriage,  but  have  been  silent  as  to  its  effect  .U])on 
the  common  law  rights  of  the  husband,  on  her  death.  Those  rights 
remain  in  full  vigor. 

The  statute  relative  to  titles  to  real  property  by  descent  directs 
the  mode  of  its  disposition  on  the  death  intestate  of  the  ovs^ner,  and 
but  for  the  20th  section  would  abrogate  both  the  estates  of  dower 
and  curtesy.  (1  R.  S.  744.)  But  the  acts  of  1848  and  1849,  rela- 
tive to  the  estates  of  married  women,  have  reference  to  her  property 
dicing  her  life.  They  unquestionably  lessen  the  common  law  mari- 
tal rights  of  the  husband,  during  the  existence  of  the  marriage,  but 
they  do  not  impair  his  rights  upon  her  death,  if  she  fails  to  exercise 
the  powers  with  which  she  is  clothed. 

It  is  the  seisin  of  the  wife,  in  her  lifetime,  and  not  that  of  the 
husband,  that  gives  the  right  to  curtesy.  {Pond  v.  Bergh,  10  Paige, 
140.)  The  foregoing  decisions  were  made  before  the  act  of  1860, 
chap,  90,  the  effect  of  which  upon  dower  and  curtesy  has  not  yet 
been  adjudicated. 

4.  The  remaining  life  esta.te  of  ivhich  ive  shall  treat  in  this  section 
is  doiver.  This  estate  is  derived  from  the  law,  and  is  that  which  a 
widow  acquires  in  a  certain  portion  of  her  husband's  real  property, 
after  his  death,  for  her  support  and  maintenance.  In  this  state  the 
general  principles,  with  respect  to  this  right,  are  set  forth  in  the 
revised  statutes.  It  is  there  enacted  that  a  widow  shall  be  endawed 
of  the  third  part  of  all  the  lands  whereof  her  husband  was  seised  of 
an  estate  of  inheritance,  at  any  time  during  the  marriage.  (1  R.  8. 
740,  §  1.)  This  is  substantially  as  the  estate  is  described  by  Littleton, 
§  36.  In  most  of  the  United  States  the  right  of  the  wife  to  dower 
is  the  same  in  substance  as  stated  by  Littleton.  In  some  of  the 
states,  the  right  to  dower  is  restricted  to  those  lands  of  which  the 
husband  died  seised.  Under  such  a  limitation  of  the  right  it  is  un- 
necessary for  the  wife  to  join  in  the  conveyance  of  her  husband  on 
sales  of  his  real  estate  in  order  to  extinguish  her  claim.  The  incho- 
ate right  to  dower  is,  in  this  state,  an  incumbrance  upon  the  estate 
of  her  husband,  which  is  usually  removed  by  her  uniting  with  him 
in  the  deed,  and  acknowledging  the  execution  thereof,  on  a  private 
examination  before  a  proper  officer. 

With  regard  to  the  person  entitled  to  dower,  it  has  been  seen  that 


62  DOWER. 

it  is  the  widow  only  of  the  party  seised  during  the  coverture  of  an 
estate  of  inheritance.  It  is  no  objection  that  her  husband  was  an  alien, 
if  at  the  time  of  his  death  he  was  by  law  entitled  to  hold  real  estate, 
provided  she  be  an  inhabitant  of  this  state  at  the  time  of  such  death. 
{Latvs  of  1845,  ch.  115,  §  2.  Z  R.  8.  7,  6th  ed.  Id.  31,  §  2.)  Nor 
is  her  own  alienage  a  bar,  provided  her  husband  is  a  citizen  of  the 
United  States  at  the  time  of  her  marriage.  {Laws  of  1845,  ch.  115, 
§  3.     ZR.  S.  7,  5th  ed.) 

The  circumstances  requisite  to  create  dower  are  marriage,  seisin 
of  the  husband  and  death  of  the  husband. 

The  marriage  must  be  a  legal  one.  If  it  be  merely  voidable,  yet 
if  it  be  not  avoided  in  the  lifetime  of  the  parties,  it  cannot  be  an- 
nulled afterwards.  The  husband  must  be  seised  during  the  coverture 
of  a  present  freehold  estate  of  inheritance.  A  seisin  of  a  vested 
remainder  is  not  sufficient  where  the  husband  dies  or  aliens  his  in- 
terest in  the  premises  during  the  continuance  of  the  particular 
estate.  {Dunham  v.  Oshorn,  1  Paige,  634.  Green  v.  Pictnam, 
1  Barb.  S.  0.  R.  500.)  A  seisin  in  law,  will  be  as  effectual  as  an 
actual  seisin.     (2  Bl.  Com.  131.     Clancy's  Rights  of  Women,  198.) 

But  when  the  seisin  is  instantaneous  or  passes  from  him  the  in- 
stant it  is  acquired ;  as  when  he  delivers  a  mortgage  for  the  pur- 
chase money  on  the  receipt  of  a  conveyance,  his  widow  is  not  enti- 
tled to  dower  as  against  the  mortgagee  or  those  claiming  under 
him,  although  she  shall  not  have  united  with  him  in  the  mortgage ; 
but  she  is  entitled  to  her  dower  as  against  all  other  persons.  (1  R.  S. 
740,  §§  4,  5.  Stoio  V.  Tifft,  15  John.  458.  Jackson  v.  De  Witt, 
6  Cowen,  316.)  But  the  mortgage  so  given  by  the  husband  or  by 
him  and  his  wife,  to  secure  the  purchase  money  of  the  mortgaged 
premises,  cannot,  after  having  been  satisfied  and  discharged  of  rec- 
ord, be  set  up  by  the  assignee  of  the  husband  as  a  bar  to  his  widow's 
right  of  dower.     {Runyan  v.  Steiuart,  12  Barb.  537.) 

The  widow  is  not  dowable  of  her  husband's  estate  for  the  life  of 
another.     {Gillis  v.  Brown,  5  Coiven,  388.) 

So  if  a  husband  be  seised  of  a  conditional  estate,  and  the 
grantor  enters  for  condition  broken,  the  wife  is  devested  of  all  claim 
of  dower.     {Beardslee  v.  Beardslee,  5  Barb.  324.) 

As  to  mines  in  general,  including  beds  of  iron  ore,  if  they  are 
unopened  at  the  owner's  death,  his  widow  must  take  her  dower  in 
other  land  merely.  The  newly  opening  of  a  mine  is  waste,  and  the 
widow,  being  tenant  for  life  can  legally  do  no  act  which  injures  the 


DOWER. 

inheritance.  But  if  mines  be  opened  during  the  husband's  life,  dov^ 
in  them  is  properly  assignable ;  but  she  cannot  profit  by  any  exten- 
sion of  that  opening.  The  admeasurer,  it  seems,  should  take  into 
consideration  the  value  of  the  mine,  so  far  as  it  was  opened,  during 
the  husband's  life,  and  assign  the  dower,  either  by  measuring  off 
one  third  in  value,  or  specifically  assigning  a  reasonable  share  of  the 
profits  at  short  periods.     {Coates  v.  Cheever,  1  Cowen,  460.) 

The  maxim  dos  de  dote  peti  non  debet  is  not  of  universal  appli- 
cation. Thus,  if  the  father  die,  and  the  land  descends  to  his  son  and 
heir,  subject  to  the  dower  of  the  mother,  and  dower  is  assigned 
to  her  in  the  premises,  and  the  son  dies  during  the  continuance  of 
her  estate,  the  widow  of  the  son  will  be  entitled  to  dower  in  the  re- 
maining two  thirds  ;  but  will  not  be  entitled  to  dower  in  the  rever- 
sion of  that  part  which  was  assigned  to  the  mother  as  tenant  in 
dower.  Here  the  maxim  applies.  As  to  that  part,  the  moment  the 
mother  is  endowed,  her  seisin  relates  back  to  the  death  of  the  hus- 
band, and  is  considered  a  continuance  of  his  seisin,  so  that  there 
never  was  any  seisin  in  the  son.  But  the  case  is  difiPerent  where  the 
father  conveys  to  his  son.  By  the  conveyance,  the  son  becomes 
seised  of  the  whole  premises  subject  to  the  dower  right  of  his  mother 
if  she  survives  the  grantor ;  and  the  wife  of  the  grantee  is  entitled 
to  dower  in  the  whole  subject  to  the  same  right.  {Dunham  v.  Os- 
horn,  1  Paige,  634.) 

Two  widows  cannot  be  endowed  of  the  whole  estate  at  the  same 
time.  If  the  land  descends  to  the  son,  subject  to  his  mother's  dower, 
he  is  not  seised  of  the  third  assigned  to  her  during  her  life  ;  and  if 
he  die,  living  the  mother,  his  widow  can  be  endowed  only  of  the  two- 
thirds,  and  not  of  the  third  assigned  to  the  mother,  nor  of  the  rever- 
sion thereof.  {Safford  v.  Safford,  7  Paige,  259.  Reynolds  v.  Bey- 
nolds,  5  id.  161.  Matter  of  Cregier,  1  Barb.  Ch.  599.)  In  Bear 
V.  Snyder,  (11  Wend.  592,)  the  chief  justice  overlooked  the  distinc- 
tion between  an  estate  which  comes  to  the  husband  by  purchase  sub- 
ject to  the  contingent  right  of  dower  of  the  wife  of  the  grantor  in 
case  she  survives  him,  and  an  estate  by  descent  which  the  heir  takes 
at  law  subject  to  the  present  right  of  dower  of  the  widow  of  the  de- 
ceased.    {Per  Walworth,  In  the  ^natter  of  Cregier,  supra.) 

The  wife  of  the  mortgagor  is  entitled  to  dower  out  of  the  lands 
mortgaged  against  all  but  the  mortgagee.  This  is  not  only  the  lan- 
guage of  the  statute,  but  results  from  the  principle  adopted  by  our 


64  DOWER,  IN  CASE  OF  EXCHANGE  OF  LANDS. 

courts,  that  the  mortgage  before  foreclosure  is  not  regarded  as  the 
legal  title  which  a  stranger  can  set  up.  The  legal  estate  is  still  in 
the  mortgagor,  and  can  be  sold  on  execution  against  him.  {Collins 
V.  Torry,  7  John.  278.  Coles  v.  Coles,  15  id.  319.  Hitchcock  v. 
Harrington,  6  id.  290.  Van  Duyne  v.  Thayre,  14  Wend.  233.  19 
id.  162,  168.) 

Courts  of  equity  follow  the  law  in  cases  of  this  kind,  and  hold 
that  the  widow  of  the  mortgagor,  who  dies  in  posi^ession  and  before 
foreclosure,  is  entitled  to  dower  in  the  mortgaged  premises,  and  will 
allow  her  dower  out  of  the  proceeds  of  the  sale  of  the  mortgaged 
premises  on  a  bill  for  a  foreclosure  and  sale.  {Titus  v.  Neilson, 
5  John.  Ch.  R.  452.) 

The  object  of  uniting  the  wife  with  the  husband  in  his  conveyance 
of  land  to  a  third  person,  is  to  extinguish  her  inchoate  right  of  dower, 
and  thus  render  the  title  perfect.  Her  uniting  with  him  in  a  mort- 
gage has  the  same  effect  as  between  her  and  the  mortgagor.  It  is 
equitable  that  she  should  take  dower  in  the  equity  of  redemption, 
if  the  land  was  of  more  value  than  the  sum  charged  upon  it  by  the 
mortgage.  If,  therefore,  the  land  be  sold  on  foreclosure,  she  is  not 
entitled  to  be  endowed  of  the  whole  proceeds,  but  only  of  what  re- 
mains after  paying  the  mortgage  debt  and  costs  of  foreclosure ;  but 
her  third  of  such  surplus  is  not  chargeable  with  any  part  of  the  costs 
of  the  reference  to  ascertain  her  rights,  {Hawley  v.  Bradford, 
9  Paige,  200.     Titus  v.  Neilson,  supra.) 

It  was  held  by  the  chancellor,  in  Carson  v.  3Iurray,  (3  Paige, 
483,)  that  the  wife  cannot  execute  a  valid  release  of  dower,  in  any 
other  way  than  by  joining  with  her  husband  in  a  conveyance  to  a 
third  person.  A  release  of  dower,  therefore,  contained  in  a  deed  of 
separation,  by  which  a  provision  was  made  for  her,  was  held  not  to 
be  a  legal  bar. 

But  if  the  wife  be  an  infant  she  is  not  barred  of  her  dower  by 
uniting  in  the  conveyance  with  her  husband.  {Priest  v.  Cummings, 
16  Wend.  617  ;  S.  C  20  id.  338.  Sanford  v.  IT  Lean,  3  Paige, 
117.     Cunninglarii  v.  Smith,  1  Barb.  399.) 

In  the  case  of  the  exchange  of  lands  by  the  husband  for  other 
lands,  the  widow  cannot  have  dower  in  both,  though  her  husband 
was  seised  of  both,  but  she  must  make  her  election  to  be  endowed 
of  the  lands  given,  or  of  those  taken  in  exchange  ;  and  if  such  elec- 
tion be  not  evinced  by  the  commencement  of  proceedings  to  recover 


DOWER— DIVORCE.  .  65 

her  dower  of  the  lands  given  in  exchange,  within  one  year  after  the 
death  of  the  husband,  she  shall  be  deemed  to  have  elected  to  take 
her  dower  of  the  lands  received  in  exchange.     (1  B.  S.  740,  §  3.) 

The  term  exchange  in  the  statute,  has  been  held  by  the  su^Dreme 
court  to  have  been  used  in  its  legal  meaning,  which  is  understood  to 
be  "  a  mutual  grant  of  equal  interests,  the  one  in  consideration  of 
the  other."  The  estates  exchanged  must  be  equal  in  quantity;  not 
of  value,  for  that  is  immaterial ;  but  of  interest,  as  fee  simple  for 
fee  simple,  a  lease  for  twenty  years  for  a  lease  for  twenty  years. 
(2  Bl.  Com.  323.  Wilcox  v.  Bandall,  7  Barb.  638.  1  Hill.  Ahr. 
77,  §  8.  1  Cruise,  179,  §  12,  Greenl.  ed.  Clancy,  198.)  The  stat- 
ute above  referred  to  is  not  introductory  of  any  new  rule  except  as 
to  the  limitation  of  the  time  within  which  the  widow  must  elect  in 
which  lands  to  claim  her  dower,  and  on  failure  so  to  elect,  restrict- 
ing her  claim  to  be  endowed  only  in  the  lands  received  in  exchange. 

A  widow  of  a  trustee  is  not  dowable  of  the  trust  estate.  {Cooper 
V.  Whitney,  3  Hill,  95.  Germand  v.  Jones,  2  id.  573.)  Nor  of  a 
power  in  trust.  {Id.)  Nor  is  she  entitled  to  dower  of  an  estate 
held  by  her  husband  in  joint  tenancy,  since  in  such  estate  the  inher- 
itance is  not  executed  in  possession,  on  account  of  the  right  of  sur- 
vivorship.    {Wharton's  Convey a7icing,5Q.     Clancy,  1^^.) 

As  a  legal  marriage  is  essential  to  dower,  it  follows  that  if  a  di- 
vorce a  vinculo  matrimonii  be  granted  for  a  cause  rendering  the 
marriage  void  ah  initio,  there  can  be  no  dower.  In  this  state  the 
supreme  court  is  authorized,  by  a  sentence  of  nullity,  to  declare  void 
the  marriage  contract,  for  either  of  the  following  causes,  existing  at 
the  time  of  the  marriage :  (1.)  That  the  parties,  or  one  of  them,  had 
not  attained  the  age  of  legal  consent,  (12  in  females  and  14  in  males ;) 
(2.)  That  the  former  husband  or  wife  of  one  of  the  parties  was  liv- 
ing, and  that  the  marriage  with  such  former  husband  or  wife  was 
then  in  force ;  (3.)  That  one  of  the  parties  was  an  idiot  or  lunatic  ; 
(4.)  That  the  consent  of  one  of  the  parties  was  obtained  by  force  or 
fraud ;  (5.)  That  one  of  the  parties  was  physically  incapable  of  en- 
tering into  the  married  state.     (2  B.  S.  142,  §  20.) 

By  a  subsequent  statute  {L.  of  1841,  ch.  257)  the  court  is  likewise 
empowered,  by  a  sentence  of  nullity,  to  declare  void  any  marriage 
contract,  upon  evidence,  (1)  that  the  female  was  at  the  time  of  the 
alleged  marriage  under  the  age  of  fourteen  years,  and  that  such  mar- 

WlLL.— 5 


ee  DOWER— HOW  BAERED— JOINTURE. 

riage  was  without  the  consent  of  her  father,  mother,  guardian  or 
other  person  having  the  legal  charge  of  her  person,  and  was  an  offense 
on  the  part  of  the  husband,  under  the  statute,  and  punishable  ac- 
cording to  law ;  (2)  that  the  marriage  was  not  followed  by  consum- 
mation or  cohabitation,  and  not  ratified  by  any  mutual  assent  of  the 
parties  after  the  female  had  attained  the  age  of  fourteen  years. 

A  decree  of  nullity  would  doubtless  be  a  good  bar  to  a  claim  for 
dower.  {Bennett  v.  Smith,  21  Barh.  440.  Wait  v.  Wait,  4  Comst. 
95 ;  S.C.4  Barb.  192-210.) 

But  when  the  divorce  is  obtained  by  the  wife  for  the  adultery  of 
the  husband,  she  being  the  innocent  and  he  the  guilty  party,  she  is 
still  entitled  to  dower  in  lands  of  which  he  was  seised  prior  to  the 
divorce.  A  divorce  or  separation,  a  mensa  et  thoro,  does  not  defeat 
the  right  to  dower  in  lands  of  the  husband  whereof  he  was  seised 
before  the  granting  of  the  decree.     (  Wait  v.  Wait,  supra.) 

There  are  several  modes  in  which  the  right  to  dower  may  be  barred. 
The  joining  of  the  wife  in  the  conveyance  of  her  husband  of  his 
lands  is  not  strictly  a  bar,  but  prevents  the  estate  in  dower  from 
attaching  in  the  wife.  It  operates  as  a  release  of  her  inchoate  right 
of  dower  which  the  statute  authorizes  her  to  execute. 

Dower  may  be  barred  by  a  jointure.  In  this  state  it  is  enacted 
that  whenever  an  estate  in  lands  shall  be  conveyed  to  a  person  and 
his  intended  wife,  or  to  such  intended  wife  alone,  or  to  any  person 
in  trust,  for  such  person  and  his  intended  wife,  or  in  trust  for  such 
•wife  alone,  for  the  purpose  of  creating  a  jointure  for  such  intended 
wife,  and  with  her  assent,  such  jointure  shall  be  a  bar  to  any 
right  or  claim  of  dower  of  such  wife,  in  any  lands  of  the  husband. 
(1  R.  S.  741,  §  9.)  The  assent  of  the  wife  to  such  jointure  must  be 
evidenced,  if  she  be  of  full  age,  by  her  becoming  a  party  to  the 
conveyance  by  which  it  shall  be  settled ;  if  she  be  an  infant,  by  her 
joining  with  her  father  or  guardian  in  such  conveyance.  {Id.  §  10. 
McCartee  v.  Teller,  2  Paige,  559.) 

Under  the  two  maxims  of  the  common  law,  namely,  that  no  right 
could  be  barred  until  it  had  accrued,  and  that  no  title  to  a  freehold 
estate  could  be  barred  by  a  collateral  satisfaction,  it  was  found  im- 
possible to  bar  a  woman  of  dower  by  any  assurance  of  lands  either 
before  or  during  the  marriage.  This  led  to  the  insertion  in  the 
statutes  of  uses  of  a  suitable  provision  for  this  purpose  and  which 
is  the  origin  of  the  modern  jointure,  which  Lord  Coke  defines  to 
be  a  competent  livelihood  of  freehold  for  the  wife,  of  lands  or  ten- 


DOWER— JOINTURE.  67 

ements,  &c.  to  take  effect  presently  in  possession,  after  the  decease 
of  her  husband,  for  the  life  of  the  wife  at  the  least,  if  she  herself  be 
not  the  cause  of  its  determination  or  forfeiture.  (1  Inst.  37  a. 
1  Cruise's  Dig.  213,  Greenl.  ed.) 

In  the  case  of  Tinney  v.  Tinney,  (3  Atldns,  8,)  a  sum  of  money 
secured  by  bond  to  the  intended  wife,  before  the  marriage,  was  held 
to  be  a  bar  to  dower.  And  in  a  case  published  by  Mr.  Cox,  where 
the  intended  husband  gave  a  bond  to  the  mother  of  the  intended 
wife,  conditioned  that  he  or  his  heirs  would  settle  £500  a  year  in 
land  on  her,  in  satisfaction  of  dower ;  Sir  T.  Clarke,  M.  R.  held  it  a 
good  jointure.  From  which  it  appears  that  the  courts  of  equity  now 
consider  any  provision  which  a  woman  accepts  before  marriage  in 
satisfaction  of  dower,  to  be  a  good  jointure.  (1  Cruise's  Dig.  216, 
Ch'eetil.  ed.) 

The  statute  being  in  contradiction  to  the  common  law,  was  always 
contsrued  strictly,  and  Lord  Coke  laid  it  down  that  the  estate  lim- 
ited to  the  woman  would  not  be  deemed  a  good  jointure  and  a  bar 
to  dower,  unless  it  was  made  to  commence  and  take  effect  immedi- 
ately on  the  death  of  the  husband  ;  that  it  be  for  the  life  of  the  wife 
at  the  least ;  that  it  be  limited  to  the  wife  herself,  and  not  to  any 
other  in  trust  for  her ;  that  it  be  made  in  satisftiction  of  the  wife's 
whole  dower  ;  that  it  be  expressed  or  averred  to  be  in  satisftiction  of 
her  whole  dower ;  and  that  it  be  made  before  marriage.  There  were 
other  estates  limited  to  a  wife  which  were  good  jointures  within  the 
statute,  provided  she  accepted  them  after  the  death  of  the  husband. 
(1  Cruise's  Dig.  215,  217,  Greenl.  ed.) 

The  New  York  statute  is  an  improvement  of  the  statute  of  uses 
in  pointing  out  the  mode  in  which  the  assent  of  the  intended  wife 
is  to  be  manifested,  and  in  providing  suitable  guards  for  the  protec- 
tion of  infants.  It  also  allows  it  to  be  made  to  another  in  trust  for 
the  intended  wife. 

The  sections  already  quoted  refer  to  a  jointure  in  an  estate  in 
lands.  The  11th  and  12tli  sections  of  the  same  act  declare  that  any 
pecuniary  provision  that  shall  be  made  for  the  benefit  of  the  intend- 
ed wife  and  in  lieu  of  dower,  shall  if  assented  to  by  such  intended 
wife,  as  above  provided,  be  a  bar  to  any  right  or  claim  of  dower  of 
such  wife  in  all  the  lands  of  her  husband. 

Also,  if  before  her  coverture,  but  without  her  assent,  or  if,  after 
her  coverture,  lands  shall  be  given  or  assured  for  the  jointure  of  a 


68  DOWER— HOW  BARRED. 

wife,  or  a  pecuniary  provision  be  made  for  her  in  lieu  of  dower,  she 
shall  make  her  election  whether  she  will  take  such  jointure  or  pe- 
cuniary provision,  or  whether  she  will  be  endowed  of  the  lands  of 
her  husband,  but  she  shall  not  be  entitled  to  both.  (1  B.  S.  741^ 
§§  11,  12.)     [See  Appendix.] 

Our  statute  on  this  subject  was  derived  from  the  27th  Henry  8th, 
ch.  10,  §  6,  with  some  modifications.  Under  the  English  statutes 
there  were  said  to  be  two  kinds  of  jointures  within  its  provisions. 
One  which  prevented  the  dower  from  accruing;  another,  which 
when  accepted  but  not  before,  becomes  a  bar  to  dower.  (1  Cruise, 
218,  Greenl.  ed.) 

The  question  how  far  a  testamentary  provisiou  in  favor  of  the 
wife  will  bar  her  claim  to  dower,  has  often  been  the  subject  of  ju- 
dicial exposition.  In  Bull  and  wife  v.  Cliurch,  (5  Hill,  206,)  the 
testator,  by  his  will,  devised  all  his  property,  real  and  personal,  to 
his  wife  during  her  natural  life,  or  as  long  as  she  should  remain  his 
widoio.  After  her  death,  or  if  she  should  marry  again,  he  gave  all 
his  property,  real  and  personal,  to  his  three  sons.  On  the  death  of 
the  husband  the  wife  took  possession  and  occupied  the  property  for 
several  years  and  then  married  the  plaintiff.  The  question  was  wheth- 
er her  acceptance  was  a  collateral  satisfaction  of  her  dower.  The 
court  held  that  it  was  not.  Dower,  it  was  said,  is  a  legal  right  over 
which  the  husband  has  no  direct  control.  It  was  admitted  that  he 
might  offer  something  else  in  lieu  of  it,  which  if  accepted,  would 
be  a  bar. 

The  general  principle  was  stated  to  be  that  a  testamentary  pro- 
vision for  the  wife  is  deemed  a  gratuity  or  a  benevolence,  which 
she  may  take  in  addition  to  her  dower,  unless  the  testator  has 
plainly  manifested  a  different  intention,  as  by  saying  that  the  gift 
is  in  lieu  or  bar  of  dower.  Express  words  will  not,  however,  be 
necessary,  if  the  claim  of  dower  is  so  utterly  inconsistent  with  the 
terras  of  the  will,  that  the  widow  cannot  have  both  gift  and  dower 
without  breaking  up  the  testator's  plan  of  disposing  of  his  estate. 
In  such  a  case  she  may  be  put  to  her  election.  This  case  was  af- 
firmed by  the  court  of  errors.  The  chancellor  in  delivering  their 
judgment  said  that  the  right  of  dower  being  a  legal  right,  and  fa- 
vored by  the  courts,  cannot  be  barred  by  a  testamentary  provision 
in  her  favor,  in  the  nature  of  a  jointure,  so  as  to  put  her  to  her  elec- 
tion, unless  the  testator  declares  the  same  to  be  in  lieu  of  dower, 


DOWER— ELECTION.  69 

either  in  express  words  or  by  necessary  implication.  After  referring 
to  Fuller  v.  Yates,  (8  Paige,  325,)  and  Sandford  v.  Jackson,  (10 
id.  266,)  he  stated  the  settled  rule  of  law  to  be,  that  to  compel 
.  the  widow  to  elect  between  the  dower  and  a  provision  made  for  her 
in  the  will,  where  the  testator  had  not  in  terms  declared  his  inten- 
tion on  the  subject,  it  was  not  sufficient  that  the  will  rendered  it 
doubtful  whether  he  intended  that  she  should  have  her  dower  in 
addition  to  that  provision ;  but  that  to  deprive  her  of  dower  the 
terms  and  provisions  of  the  will  must  be  totally  inconsistent  with 
her  claim  of  dower  in  the  property  in  which  it  is  claimed ;  so  that 
the  intention  of  the  testator  in  relation  to  some  part  of  the  property 
devised  to  others  would  be  defeated  if  such  claim  was  allowed. 
{Church  V.  Bull  and  toife,  2  Denio,  430.) 

The  intention  of  the  testator  in  such  cases  is  to  be  gathered 
from  the  will  itself,  and  not  from  his  oral  declarations,  or  other 
extrinsic  acts. 

When  the  testamentary  provision  in  favor  of  the  widow  is  not 
stated  to  be  in  lieu  of  dower,  and  is  not  inconsistent  with  her  claim, 
and  is  of  shorter  continuance  than  her  estate  of  dower  and  is 
charged  with  a  burden,  indefinite  in  its  nature  and  extent,  no  im- 
plication can  be  raised  against  the  validity  of  her  claim.  (Lasher 
V.  Lasher,  13  Barb.  106.     Leonard  v.  Steele,  4  id.  20.) 

Courts  of  law  as  well  as  courts  of  equity  hold  the  widow  to  elect 
between  her  dower  and  a  legacy  given  in  lieu  of  it.  (  Van  Orden  v. 
Van  Orden,  10  John.  30.  Kennedy  v.  dlills,  13  Wend.  553.) 
But  to  constitute  a  case  for  election  under  the  statute,  the  provision 
in  lieu  of  dower  must  be  one  in  which  she  is  to  have  some  beneficial 
interest.  A  mere  power  in  trust  for  the  benefit  of  others  is  not  suffi- 
cient, though  the  interest  of  the  cestui  que  trust  may  be  made  de- 
pendent upon  her  election  to  take  a  provision  in  lieu  of  dower. 
{Eaioley  v.  James,  5  Paige,  318.) 

The  interest  of  a  mortgagee  before  foreclosure,  though  the  mort- 
gage be  in  fee,  is  not  such  a  seisin  as  to  entitle  the  wife  of  the  mort- 
gagee to  dower  therein,  unless  he  acquires  an  absolute  estate  therein 
during  the  marriage.     (1  R.  S.  741,  §  7.) 

In  cases  where  the  wife  is  entitled  to  an  election  under  the  12tli 
and  13th  sections  of  the  statute  before  cited,  (1  B.  S.  741,)  it  is  de- 
clared that  she  shall  be  deemed  to  have  elected  to  take  her  jointure, 
devise  or  pecuniary  provision,  unless  within  one  year  after  the  death 
of  her  husband  she  shall  enter  on  the  lands  to  be  assigned  to  her  for 


/ 


70  DOWER,  WHEN  FORFEITED  BY  DIVORCE. 

her  dower,  or  commence  proceedings  for  the  recovery  or  assignment 
thereof.     {Id.  §  14.) 

With  regard  to  the  forfeiture  of  dower  it  is  enacted  that,  in  case 
of  a  divorce,  dissolving  the  marriage  contract,  for  the  misconduct  of 
the  wife,  she  shall  not  be  endowed.  (1  R.  S.  745,  §  8.)  The  stat- 
ute is  indefinite  as  to  the  nature  of  the  misconduct  that  shall  work 
out  that  consequence.  If  we  construe  it  with  the  provision  relative 
to  divorces,  it  probably  means  the  adultery  of  the  wife,  established 
and  declared  in  an  action  by  the  husband  for  a  divorce  for  such  adul- 
tery. Such  a  divorce,  it  has  been  seen,  does  not  avoid  the  marriage 
from  the  beginning,  and  therefore,  but  for  this  statute,  would  not  im- 
pair her  claim  to  dower.  (2  R.  S.  146,  §  48.  Wait  v.  Wait,  4 
Coinst.  95.)  It  is  perhaps  unfortunate  that  the  particular  miscon- 
duct has  not  been  designated. 

In  Reynolds  v.  Reynolds,  (24  Wend.  193,)  the  supreme  court  de- 
cided in  1840,  that  since  the  revision  of  1830,  when  a  husband  dies, 
his  widow  is  entitled  to  dower  in  the  lands  whereof  he  was  seised, 
notwithstanding  that  previous  to  1830,  for  many  years  she  lived  in 
open  adultery  away  from  him,  if  a  divorce  was  not  obtained.  Had 
the  husband  died  previous  to  1830,  she  would  have  been  barred  un- 
der the  former  act  concerning  dower,  (1  R.  L.  5^,)  passed  in  1787, 
notwithstanding  a  divorce  had  not  been  obtained  ;  but  that  act 
having  been  repealed,  the  widow,  by  the  revised  statutes,  is  not  bar- 
red, unless  the  marriage  contract  has  been  dissolved  by  a  divorce. 
Previous  to  the  death  of  the  husband,  the  wife  had  no  right,  inter- 
est or  estate  in  the  lands  of  her  husband  which  could  be  forfeited  by 
the  adultery,  and  therefore  the  act  of  1787  had  no  operation  in  bar- 
ring her  dower. 

As  to  elopement,  this  was  no  bar  of  dower  at  the  common  law, 
though  a  divorce  were  sued  and  obtained  for  the  adultery  ;  but  the 
statute  of  Westminster,  2d  ch.  34,  re-enacted  in  this  state  in  1787, 
(1  R.  L.  58,  §  7,)  expressly  provides  that  in  such  a  case  the  wife 
shall  lose  her  dower  ;  and  though  she  did  not  go  away  voluntarily, 
but  was  taken  against  her  will,  yet,  if  after  she  consented  and  re- 
mained with  the  adultei'er,  she  lost  her  dower ;  for  the  remaining 
with  him  without  reconciliation  was  the  bar  of  dower,  and  not  the 
manner  of  going  away.  {Bacon's  Ahr.  tit.  Dower,  F.  2  Inst.  435.) 
The  present  law  places  the  bar  on  the  ground  of  adultery  on  the  di- 
vorce obtained  for  that  cause. 


DOWER  IN  EQUITY.  71 

If  the  wife  forfeits  her  dower  on  a  conviction  for  adultery  in  an 
action  brought  by  the  husband  for  a  divorce,  it  would  seem  just  that 
the  same  consequences  should  follow  with  respect  to  her  jointure,  or 
any  testamentary  provision  made  in  her  favor  in  lieu  of  dower.  It 
is  accordingly  enacted  that  every  jointure,  devise,  and  every  pecun- 
iary provision  in  lieu  of  dower  shall  be  forfeited  by  the  woman  for 
whose  benefit  it  shall  be  made,  in  the.  same  cases  in  which  she  would 
forfeit  her  dower  ;  and  upon  such  forfeiture,  any  estate  so  conveyed 
for  jointure,  and  every  pecuniary  provision  so  made,  shall  immedi- 
ately vest  in  the  person  or  his  legal  representatives,  in  whom  they 
would  have  vested  on  the  determination  of  her  interest  therein,  by 
the  death  of  such  woman.     (1  R.  S.  742,  §  15.) 

We  have  hitherto  been  considering  cases  in  which  the  husband 
was  seised  of  an  estate  in  fee  simple  absolute.  But  the  wife  is  enti- 
tled to  dower  where  the  husband  was  seised  of  a  defeasible  or  condi- 
tional estate  of  freehold  of  inheritance.  If  land  be  granted  to  a  man 
and  his  heirs  until  the  happening  of  a  future  event,  the  widow  is  en- 
titled to  dower  therein  on  surviving  her  husband,  but  her  dower  will 
be  defeated  on  the  happening  of  the  event  upon  which  the  estate  is 
limited.  Her  dower  is  likewise  liable  to  be  defeated  by  any  claim 
or  incumbrance  overreaching  his  title,  and  by  which  his  estate  might 
be  destroyed. 

There  is  also  another  class  of  cases  in  which  courts  of  equity  will 
uphold  the  claim  to  dower,  which  could  not  be  reached  by  the  strict 
rules  of  the  common  law.  It  is  a  maxim  of  equity  that  money 
agreed  to  be  turned  into  land  is  to  be  considered  as  land.  What 
has  been  lawfully  agreed  to  be  done  is,  in  that  court,  treated  as 
done.  Hence  in  cases  of  that  nature  the  widow  would  be  entitled, 
in  a  court  of  equity,  to  the  same  interest  in  the  money,  that  would 
belong  to  her  in  the  land,  if  the  conversion  of  the  fund  had  actually 
taken  place.  The  widow  is  now  dowable  of  land  which  the  husband 
had  fully  paid  for,  but  of  which  he  had  received  no  conveyance. 
{Haidey  v.  James,  5  Paige,  318,  453.)  So  she  is  dowable  of  land 
for  which  he  had  paid,  and  the  deed  of  which  had  been  taken  in  the 
name  of  another.     {Id;  S.  C.  16  Wend  61.) 

We  have  seen  by  the  definition  of  the  estate  in  dower,  that  the 
wife  is  entitled  to  be  endowed  of  all  the  lands  whereof  the  husband 
was  seised  of  a  freehold  estate  of  inheritance  at  any  time  during  the 


72  DOWER— AFTER  ALIEX^.TION  BY  HUSBAND. 

coverture.  It  is  not  essential  that  his  seisin  should  have  continued 
till  his  death,  although  it  is  necessary  that  the  marriage  should 
have  remained  undissolved  until  that  time. 

To  protect  the  rights  of  the  wife  in  this  respect,  which  have  always 
been  favored  in  law,  it  is  wisely  declared  that  no  act,  deed  or  convey- 
ance, executed  or  performed  by  the  husband  without  the  assent  of 
his  wife,  evidenced  by  her  acknowledgment  thereof,  in  the  manner 
required  by  law  to  pass  the  estates  of  married  women,  and  no  judg- 
ment or  decree  confessed  or  recovered  against  him,  and  no  laches, 
default,  covin  or  crime  of  the  husband  shall  prejudice  the  right  of 
his  wife  to  her  dower  or  jointure,  or  preclude  her  from  the  recovery 
thereof,  if  otherwise  entitled  thereto.     (1  B.  S.  742,  §  16.) 

It  would,  however,  be  manifestly  unjust  in  case  of  the  alienation 
of  the  lands  by  the  husband  during  the  coverture  to  allow  the  wife, 
after  the  death  of  her  husband,  to  recover  dower  upon  the  same  prin- 
ciples as  if  her  husband  had  died  seised.  The  effect  of  such  recov- 
ery would  be  to  give  her  the  avails  of  the  labors  of  the  alienee  of  her 
husband,  who  may  have  been  a  purchaser  in  good  faith,  and  whose 
equity  is  stronger  than  her's.  The  policy  of  such  claim  would  be  of 
injurious  tendency,  as  it  would  repress  the  spirit  of  improvement. 
Accordingly  the  ancient  common  law  required  the  widow  to  take 
her  dower  in  the  land  according  to  the  value  at  the  time  of  the 
alienation.  {Hum^jhrey  v.  Phinney,  2  John.  484.)  The  act  of  1806, 
{vol.  4,  616,)  the  principles  of  which  are  incorporated  into  the  re- 
vised statutes  of  1830,  (2  R.  S.  490,  §  13 ;  1  id.  743,  §  25,)  was 
not  introductory  of  any  new  rule,  but  was  declaratory  only  of  the 
former  law. 

The  same  rule  prevails  whether  the  proceedings  to  obtain  the 
assignment  of  dower  be  conducted  in  a  court  of  equity  or  a  court  of 
law,  or  in  the  court  of  the  surrogate  of  the  county.  Chancellor  Kent 
examined  the  subject  on  several  occasions,  and  the  result  of  his  in- 
quiries was,  that  where  the  land  was  aliened  by  the  husband,  the 
widow's  dower  was  to  be  taken  according  to  the  value  of  the  land 
at  the  time  of  alienation.  If  the  husband  mortgages  the  land, 
but  continues  in  possession,  and  afterwards  releases  the  equity  of 
redemption  to  the  mortgagee,  the  time  of  the  release  of  the  equity 
of  redemption  is  to  be  deemed  the  period  of  alienation,  at  which  the 
value  is  to  be  taken,  and  which  is  to  be  estimated,  without  regard 
to  the  subsequent  improvements  made  by  the  purchaser.  (Hale  v. 
James,  6  John.  Oh.  258.    Humphrey  v.  Phinney,  supra.  Dorchester 


DOWER— BEFOEE  ASSIGNMENT.  73 

V.  Coventry,  11  John.  510.  Shaiu  v.  White,  13  id.  179.  Do?/ v. 
Basset,  15  id.  21.  '  Walker  v.  Schuyler,  10  Wend.  480.  Coates  v. 
Cheever,  1  Cowen,  460.) 

The  statute  is  sufficiently  clear  to  exclude  the  widow  from  the  per- 
manent improvements  placed  on  the  land  by  the  heirs  or  the  alienee 
of  the  husband.  (1  R.  S.  743.)  But  whether  she  is  entitled  to  the 
enhanced  value  arising  from  the  general  advancement  of  the  coun- 
try, or  from  collateral  circumstances,  is  not  distinctly  declared.  Her 
claim  to  the  benefit  arising  from  such  increased  value,  not  occasioned 
by  the  labors  or  expenditures  of  the  partj',  is  as  strong  as  the  cor- 
responding principle  which  would  cast  upon  her  the  risk  of  a  dimi- 
nution of  that  value  by  any  cause.  But  this  question  seems  to  have 
been  settled  otherwise  by  the  courts  in  this  state.  {Dorchester  v. 
Coventry,  supra.  Shaw  v.  White,  stqn-a.)  They  confine  the  widow 
strictly  to  the  value  at  the  time  of  alienation  by  the  husband,  thus 
giving  the  alienee  the  benefit  resulting  from  the  general  increase 
of  value  of  the  land. 

With  regard  to  the  rights  of  the  widow  on  the  death  of  her  hus- 
band, the  law  provides  that  she  may  tarry  in  the  chief  house  of  her 
husband  forty  days  after  his  death,  whether  her  dower  be  sooner  as- 
signed to  her  or  not,  without  being  liable  to  any  rent  for  the  same, 
and  in  the  mean  time  she  is  to  have  her  reasonable  sustenance  out 
of  the  estate  of  her  husband.  (1  B.  S.  742,  §  17.)  This  is  called 
the  widow's  quarantine,  and  was  first  given  by  magna  charta.  {Mag- 
na Charta,  ch.  7.)  It  is  necessarily  implied  that  she  is  not  liable 
to  pay  rent,  but  is  to  be  supported  gratuitously  during  that  period. 

Before  the  assignment  of  her  dower  the  widow  has  a  mere  right, 
and  she  can  convey  no  interest  in  the  land  until  assignment.  {Sig- 
lar  V.  Van  Riper,  10  Wend.  414.  Green  v.  Putnam,  1  Barh.  500.) 
The  law  casts  the  freehold  on  the  heir  upon  the  death  of  the  ancestor, 
and  it  is  his  duty  to  make  the  assignment.  The  moment  the  widow 
is  endowed  her  seisin  relates  back  to  the  death  of  the  husband,  and 
is  considered  a  continuance  of  his  seisin,  so  that  there  never  was  any 
seisin  in  the  heir.  {Per  Walioorth,  Ch.  Dunham  v.  Oshorn,  1  Paige, 
636.  Safford  v.  Safford,  7  id.  260.)  Eegularly,  no  person  can 
assign  dower  who  has  not  a  freehold  estate  in  the  land.  (1  Cruise's 
Dig.  190,  Greenl.  ed.)  And  the  assignment  by  an  infant  is  good, 
subject  only  to  be  corrected,  if  excessive,  by  a  subsequent  admeas- 
urement.    {Id.) 

It  has  been  doubted  whether  by  the  law  prior  to  the  revised  stat- 


74  DOWER— REMEDIES  FOR. 

utes  of  1830,  tliere  was  any  limitation  to  the  action  of  dower, 
and  whether  the  widow  might  not  at  any  time,  however  remote, 
assert  her  right  by  an  action.  {Sayre  v.  Wisner,  8  Wend.  661.) 
But  the  existing  law  requires  that  she  shall  demand  her  dower  with- 
in twenty  years  after  the  death  of  her  husband  ;  but  if  at  the  time 
of  such  death  she  be  under  the  age  of  twenty-one  years,  or  insane, 
or  imprisoned  on  a  criminal  charge  or  conviction,  the  time  during 
which  such  disability  continues  shall  not  form  any  part  of  the  said 
term  of  twenty  years.  (1  B.  S.  742,  §  18.  Sayre  v.  Wisner, 
supra.      Ward  v.  Kitts,  12  Wend.  139.) 

The  mode  of  assigning  dower  when  the  nature  of  the  estate  will 
admit  of  it,  is  by  metes  and  bounds ;  but  when  no  division  can  be 
made,  the  widow  must  be  endowed  in  a  special,  certain  manner. 
Of  a  mill,  she  cannot  be  endowed  by  metes  and  bounds,  nor  in 
common  with  the  heir,  but  she  may  be  endowed  of  the  third  toll 
dish,  or  of  the  entire  mill  for  a  certain  time,  (1  Cruise's  Dig. 
Greenl.  ed.  190.  Coates  v.  Gheever,  1  Cowen,  476,  per  Savage,  Ch. 
J.     Co.  Lit.  32  a.) 

The  remedies  which  the  law  gives  to  the  widow  for  her  dower  are 
more  comprehensive  and  efficacious  than  the  old  form  of  writ  of  dower 
unde  nihil  hahet.  Since  the  code  abolishing  all  former  remedies, 
and  substituting  a  civil  action  in  lieu  thereof,  and  conferring  upon  the 
court  jurisdiction  as  well  in  equity  as  at  law,  the  widow  can  bring 
her  action  according  to  the  nature  of  the  case  for  equitable  or  legal 
relief  It  was  well  settled  «nder  the  former  practice,  that  though 
the  widow's  remedy  for  dower  was  prima  facie  at  law,  yet  when 
the  title  was  admitted,  but  impediments  were  thrown  in  the  way  of 
her  proceedings,  a  court  of  equity  would  sustain  her  action  for 
dower.  (Stvaine  v.  Ferine,  5  JoJm.  Ch.  482.)  There  were  cases,  in- 
deed, where  her  remedy  was  confined  to  courts  of  equity.  Thus 
though  she  was  entitled  to  dower  in  an  equity  of  redemption,  she 
could  not  maintain  ejectment  for  it  against  the  mortgagee  or  his 
assigns  in  possession,  if  the  moitgage  be  forfeited,  but  must  resort 
to  a  court  of  equity.     {Coop)er  v.  Whittiey,  3  Hill,  95.). 

So  also,  when  the  premises  were  in  the  possession  of  a  termor 
whose  term  had  nut  expired,  aa  action  of  dower  at  law  could  not 
be  maintained,  as  it  could  only  be  brought  against  the  owner  of  the 
freehold.  But  the  remedy  in  equity  was  undoubted.  {Badgley  v. 
Bruce,  4  Paige,  98.) 


DOWER— DAMAGES.  75 

Under  the  existing  practice,  the  widow,  whose  dower  has  not 
been  assigned  to  her  within  forty  days  after  the  decease  of  her  hus- 
band, may  apply  by  petition  for  the  admeasurement  of  her  dower, 
to  the  supreme  court,  or  to  the  county  court  of  the  county  in  which 
the  lands  subject  to  dower  lie ;  or  to  the  surrogate  of  the  said  coun- 
ty; specifying  therein  the  lands  in  which  she  claims  dower.  A 
copy  of  the  petition  must  be  served  upon  the  owners  who  claim  a 
freehold  estate  in  the  lands  in  which  dower  is  claimed,  whether  tliey 
be  the  heirs  of  the  husband,  or  otherwise,  or  upon  their  guardians, 
if  the  heirs  or  owners  be  minors.  The  statute  points  out  the  mode 
of  seisin,  and  the  proceedings  to  be  taken,  and  they  will  be  found 
described  in  the  books  treating  of  the  practice  of  the  respective 
courts.  {See  Willard's  Eq.  Jur.  693  et  seq.  WiUard's  Ex'rs, 
464  et  seq.     Crary's  Special  Proceedings,  1.) 

In  an  action  to  recover  dower  in  lands  of  which  the  husband  died 
seised  the  widow  is  entitled  to  damages  for  the  Avithholding  of  her 
dower.  (1  R  S.  142,  §  19.)  The  rule  of  damages  prescribed  by 
the  statute  is  one  third  part  of  the  annual  value  of  the  mesne  profits 
of  the  lands  in  which  her  dower  is  secured,  to  be  estimated  in  a 
suit  against  the  heirs  of  her  husband,  from  the  time  of  his  death ; 
and  in  suits  against  other  persons  from  the  time  of  her  demanding 
her  dower  of  such  persons ;  and  in  all  cases  to  be  estimated  to  th'3 
time  of  the  recovering  judgment  for  such  damages,  but  not  to  ex- 
ceed six  years  in  the  whole  in  any  one  case.     (1  R.  S.  *14Q,  §  20.) 

Such  damages  shall  not  be  estimated  -for  the  use  of  any  perma- 
nent improvements  made  after  the  death  of  her  husband,  by  his 
heirs  or  by  any  other  person  claiming  title  to  such  lands.  (1  B.  S. 
743,  §  21.) 

In  case  the  heir  of  the  husband  shall  have  aliened  the  lands,  and 
the  widow  shall  recover  her  dower  therein,  she  is  entitled  to  recover 
of  such  heir,  her  damages  for  withholding  such  dower  from  the  time 
of  the  death  of  the  husband  to  the  time  of  the  alienation  by  the 
heir,  not  exceeding  six  years  in  the  whole.  And  the  amount  recov- 
ered from  such  heirs  shall  be  deducted  from  the  amount  she  would 
otherwise  be  entitled  to  recover  from  such  grantee,  and  also  any 
amount  recovered  as  damages  from  such  grantee  shall  be  deducted 
from  the  sum  she  would  otherwise  be  entitled  to  recover  from  such 
heir.     {Id.  §  22.) 


76  INCIDENTS  OF  LIFE  ESTATES. 

Section  IV. 
Of  the  incidents  of  estates  for  life. 

We  shall  now  treat,  in  a  separate  section,  of  certain  incidents  of 
estates  for  life,  the  consideration  of  which  we  have,  for  the  sake  of 
brevity,  postponed  until  this  time.  These  are,  for  the  most  part, 
the  same,  whether  the  estate  for  life  be  conventional  or  created  by 
the  law. 

(1.)  An  estate  for  life  is  subject  to  merge  in  the  inheritance. 
Therefore,  if  the  tenant  for  life  surrender  to  him  in  reversion,  or  if 
the  former  acquires  the  absolute  property,  the  life  estate  in  either 
case  becomes  merged  in  the  fee  simple.  (1  Inst.  338  h.  1  Cruise's 
Dig.  101,  Greenl.  ed.) 

(2.)  Tenant  for  life  may  make  leases  of  a  less  estate  than  his  own ; 
or  may  assign  his  entire  estate  ;  nor  does  he  forfeit  his  estate  by 
leasing  in  fee.  {Jackson  v.  Mancius,  2  Wend.  357.  Grout  v.  Town- 
send,  2  Hill,  558.)  At  common  law  a  tenant  for  life  forfeited  his 
estate  when  he  conveyed  a  fee  by  feoffment  with  livery  of  seisin,  or 
by  a  fine  and  recovery.  But  these  conveyances  are  now  abolished  in 
this  state,  and  by  statute  no  person  can  convey  a  greater  estate  than 
he  has,  and  a  grant  or  conveyance  of  a  greater  estate  operates  only 
to  pass  all  the  estate  which  the  grantor  had  in  the  lands,  and  which 
he  could  lawfully  convey.     (1  R.  S.  739,  §§  143,  145.) 

(3.)  A  tenant  for  life  is  entitled  to  estovers.  This  is  the  allow- 
ance for  necessary  wood  for  fuel,  and  for  fencing  and  repairing  build- 
ings, where  it  can  be  done  without  injury  to  the  inheritance,  and 
where  the  tenant  is  not  restrained  by  covenants.  It  is  not  abso- 
lutely necessary  that  the  wood  should  be  burned  on  the  premises. 
{Gardiner  v.  Bering,  1  Paige,  573.)  He  has  no  right  to  cut  down 
timber  which  serves  for  ornament  or  shelter,  or  which  is  not  fit  to  be 
felled.  For  the  purpose  of  fuel  he  is  bound  to  take  the  dry,  perish- 
ing or  fallen  wood.  He  must  do  as  little  injury  to  the  inheritance 
as  possible,  consistent  with  his  right  of  enjoyment.  If,  however,  the 
premises  demised  be  wild  and  uncultivated  land,  wholly  covered 
with  wood  and  timber,  the  lessee  may  fell  part  of  the  wood  and  tim- 
ber, so  as  to  fit  the  land  for  cultivation,  without  being  liable  to 
waste  ;  but  he  cannot  cut  down  all  the  wood  and  timber  so  as  per- 
manently to  injure  the  inheritance.     And  to  what  extent  the  wood 


EMBLEMENTS.  77 

and  timber  on  such  land  may  be  cut  down,  without  waste,  is,  it 
seems,  a  question  of  fact  for  the  jury  to  decide,  under  the  direction 
of  the  court,     {Jackson  v.  Brownson,  7  John.  227.) 

It  is  usual  and  proper  in  conventional  estates  for  life,  to  guard  by 
proper  covenants  the  rights  of  the  reversioner,  and  to  prescribe  the 
duties  of  the  tenant. 

(4.)  Tenant  for  life  is  entitled  to  emblements.  By  this  is  under- 
stood those  growing  crops  to  which  the  executors  of  tenant  for  life 
are  entitled  in  preference  to  the  reversioner.  It  extends  only  to  such 
crops  as  yield  an  annual  profit.  It  does  not  extend  to  grass  or  fruits 
which  are  the  natural  growth  of  the  soil.  Upon  this  principle  the 
enactment  is  based  that  the  widow  may  bequeath  the  crop  in  the 
ground  of  the  land  held  by  her  in  dower.  (1  R.  S.  743,  §  25.)  If 
she  fails  to  bequeath  them,  they  go  to  her  executors  or  administra- 
tors, to  be  distributed  with  her  personal  estate. 

The  doctrine  of  emblements  is  founded  on  the  clearest  equity. 
{Stewart  v.  Doughty,  9  John.  112.)  As  the  termination  of  the 
estate  depends  on  the  act  of  God,  or  the  law,  public  policy  requires 
that  the  inducement  of  the  tenant  to  cultivate  the  soil  should  not  be 
weakened  by  the  fear  of  losing  the  fruits  of  his  labor.  It  is  not 
applicable  where  the  estate  is  determined  by  the  act  of  the  tenant 
himself,  or  where  the  termination  of  the  estate  is  fixed  and  made 
certain  by  the  contract  of  the  parties.  In  leases  for  years  the  rights 
of  the  parties  are  generally,  and  always  should  be,  regulated  by  proper 
stipulations  or  covenants.  In  such  a  case  the  tenant  knows  before- 
hand to  whom  the  outgoing  crop  belongs. 

The  rule  with  respect  to  emblements  extends  to  other  things  besides 
grain  or  corn.  It  applies  to  roots,  as  when  a  man  plants  hops  of  old 
roots,  for  they  are  such  things  as  grow  by  annual  manurance  and  in- 
dustry of  the  owner.  (2  Crahb's  Laio  of  Real  Estate,  52,  §  1047.) 
But  it  does  not  apply  to  those  things  which  proceed  annually  of 
themselves  without  the  labor  of  man.  Therefore  grass  and  trees  do 
not  fall  within  the  principle.     [See  lease,  in  Appendix.] 

(5.)  If  the  estate  be  charged  with  an  incumbrance,  tenant  for  life 
is  bound  to  keep  down  the  interest,  and  a  widow  being  tenant  for 
life  of  one  third  of  the  premises  is  to  contribute  one  third  of  the 
interest.  {Sioaine  v.  Ferine,  5  John.  482.)  Such  tenant  is  not 
bound  to  pay  off  the  incumbrance,  and  if  compelled  to  do  so,  is  en- 


78  RIGHTS  OF  TENANT  FOR  LIFE. 

titled  to  be  reimbursed  out  of  the  estate  chargeable  with  it.  The 
rule  is  intended  to  divide  the  burden  ratably  among  all  the  owners 
of  the  estate  in  proportion  to  their  interest  therein. 

(6.)  The  tenant  for  life  has  a  'prima  facie  right  to  the  custody  of 
the  title  deeds  of  the  estate,  in  order  the  more  perfectly  to  enjoy  his 
right  to  the  possession  of  the  estate.     (1  Wharton  on  Convetj.  45.) 

(7.)  A  tenant  for  life  cannot  dig  for  gravel,  lime,  clay,  brick,  earth, 
stone,  or  the  like,  unless  for  the  reparation  of  buildings  or  manuring 
of  the  land.  Nor  can  he  open  a  new  mine ;  but  he  may  dig  and 
take  the  profits  of  mines  that  are  open.  (1  Cruise's  Dig.  119,  Greenl. 
ed.  1  Inst  53  h.  Coates  v.  Cheever,  1  Cotven,  474,  per  Wood- 
worth,  J.)  In  Clavering  v.  Clavering,  (2  P.  Wms.  388,)  Lord 
Chancellor  King  held  that  tenant  for  life  of  coal  mines,  already 
worked,  might  open  new  pits  or  shafts  to  follow  the  same  vein  ;  and 
he  observed  that  otherwise  the  working  in  the  same  mines. would  be 
impracticable,  because  the  miners  would  be  choaked  for  want  of  air, 
if  new  holes  should  hot  be  continually  opened  to  let  in  the  air  to 
them. 

Nor  can  a  tenant  for  life  cut  wood  on  the  premises  to  burn  bricks 
and  use  the  soil  for  making  them.  {Livingston  v.  Reijnolds,  26 
Wend.  115.     S.  a  2  Hill,  157.) 

Though  the  doctrine  of  waste,  as  understood  in  England,  is  not 
applicable  to  a  new  and  unsettled  country  ;  and  though  when  the 
whole  of  a  farm,  when  leased,  is  in  a  wild  and  uncultivated  state, 
and  for  the  use  of  it  the  lessee  agrees  to  pay  rent,  still  the  parties 
will  be  held  to  haye  intended  that  the  lessee  should  be  at  liberty  to 
fell  part  of  the  timber  in  order  to  fit  the  land  for  cultivation.  But 
this  right  will  not  authorize  the  lessee  to  destroy  all  the  timber,  and 
thereby  irreparably  injure  the  premises,  or  permanently  diminish  their 
value.     (Kidd  v.  Dennison,  6  Barb.  9.) 

In  England  the  conversion  of  one  kind  of  land  into  another,  as 
the  changing  of  meadow  to  arable,  is  waste ;  because  it  not  only 
changes  the  course  of  husbandry,  but  also  the  evidence  of  the  estate. 
So,  also,  the  plowing  up,  burning  and  sowing  of  clover  land  is  waste. 
(1  Cruise,  Greenl.  ed.  120.)  But  it  is  believed  a  different  rule  pre- 
vails here,  and  that  such  acts  will  not  be  treated  as  waste  unless  they 
are  clear  departures  from  the  course  of  good  husbandry  in  the  par- 


RIGHTS  OF  TENANT  AS  TO  WASTE.  79 

ticular  region  of  country  where  they  occur,     {Livingston  v.  i?e?/- 
nolds,  26  Wend.  122,  per  Bradish,  President  of  the  Senate.) 

Permissive  loaste  is  when  the  tenant  suffers  buildings  on  an  estate 
to  decay.  But  if  a  house  be  ruinous  when  it  comes  into  the  pos- 
session of  the  tenant  for  life,  he  is  not  punishable  for  suffering  it  to 
fall  down  ;  for  in  that  case  he  is  not  bound  by  law  to  repair  it.  But 
as  the  law  favors  the  maintenance  of  houses,  if  he  cuts  down  timber 
and  therewith  repairs  it,  he  can  justify.     (1  Inst.  539,  54  h.) 

But  it  is  not  absolutely  indispensable  that  the  tenant  for  life 
should  use  the  same  timber  which  he  cuts  down  on  the  estate  for  the 
purpose  of  making  repairs.  If  he  sells  the  timber  so  cut  down  and 
purchases  boards  with  the  proceeds  for  such  repairs,  it  is  a  substan- 
tial compliance  with  the  law,  provided  it  be  proved  to  be  the  most 
economical  mode  of  making  the  repairs.  (Loomis  v.  Wilbur,  5  Ma- 
son, 13.) 

In  Massachusetts  it  has  been  held  that  a  tenant  for  life  is  amena- 
ble for  waste  committed  by  a  trespasser.  This  is  upon  the  principle 
that  the  law  gives  him  an  action  of  trespass,  and  therefore  he  is 
bound  so  see  that  trespassers  do  not  injure  the  estate.  {Fay  v.  Brew- 
er, 3  Pick.  203,  205.) 

Under  this  head  oi permissive  waste,  the  tenant  for  life,  at  com- 
mon law,  was  held  answerable,  if  the  house  or  other  building  was 
destroyed  by  fire  through  his  carelessness  or  negligence.  The  tenant, 
in  such  case,  was  required  to  rebuild,  at  his  own  expense,  and  within 
a  convenient  time.     {Go.  Litt.  53  h.) 

No  person  was  entitled,  at  common  law,  to  an  action  of  waste 
asrainst  a  tenant  for  life,  but  he  who  had  the  immediate  estate  of' 
inheritance,  expectant  on  the  determination  of  the  life  estate.  But 
the  revised  statutes  have  provided  that  a  person  seised  of  an  estate 
in  remainder  or  reversion,  may  maintain  an  action  of  waste  or  tres- 
pass for  any  injury  done  to  the  inheritance,  notwithstanding  any 
intervening  estate  for  life  or  years.     (1  R.  S.  750,  §  8.) 

In  like  manner,  if  one  joint  tenant  or  tenant  in  common  shall 
commit  waste  on  the  land  held  in  joint  tenancy  or  in  common,  he  is 
made  subject  to  an  action  of  waste  at  the  suit  of  his  co-tenant  or 
co-tenants.  (2  B.  S.  334,  §  3.)  And  an  heir,  whether  within  age 
or  of  full  age,  may  maintain  an  action  for  waste  done  in  the  time  of 
his  ancestor,  as  well  as  in  his  own  time.     (Id.  334,  §  4.) 


80  ESTATES  LESS  THAN  FREEHOLD. 

CHAPTEE  III. 

OF   ESTATES   LESS   THAN    FKEEHOLD. 

We  have  hitherto  treated  of  estates  in  fee  simple,  and  of  estates 
of  freehold.  We  now  prgceed  to  another  class,  that  of  estates  less 
than  freehold.  These  are,  1.  Estates  for  years  ;  2.  Estates  at  will ; 
3.  Tenancies  from  year  to  year ;  4.  Estates  at  sufferance.  All  tho 
estates  less  than  freehold  may  be  arranged  under  one  or  the  other  of 
these  heads. 

Section  I. 
Of  estates  for  years. 

The  description  of  an  estate  for  years,  given  by  Littleton,  400 
years  ago,  is  applicable  to  that  estate  at  the  present  day.  "  Tenant 
for  term  of  years,"  says  he  in  §  58,  "  is  where  a  man  letteth  lands 
or  tenements  to  another  for  term  of  certain  years,  after  the  number 
of  years  that  is  accorded  between  the  lessor  and  lessee.  And  when 
the  lessee  entereth  by  force  of  the  lease,  then  is  he  tenant  for  term 
of  years."  It  is  not  essential  to  the  estate  that  its  duration  should 
be  limited  to  one  or  more  years.  An  agreement  for  the  possession 
of  lands  for  half  a  year,  a  quarter  of  a  year,  a  month  or  a  week  or 
any  less  time,  is  treated  as  an  estate  for  years,  that  being  the  short- 
est period  that  the  law  takes  notice  of.     {Litt.  %  58,  67.) 

This  estate  is  frequently  called  a  term;  and  the  party  who  holds  it  a 
termor.  The  expression  term  signifies  not  merely  the  period  of  time 
during  which  the  estate  is  to  continue,  but  also  the  estate  or  interest 
which  passes  from  that  period.  The  estate  must  have  a  certain  be- 
ginning and  a  certain  end,  which  must  be  certain  when  the  estate 
takes  effect  in  interest  or  possession.  (1  Inst.  45  b.)  At  common 
law  there  was  a  tenure  between  the  lessor  and  lessee  to  which  fealty 
was  incident ;  and  there  was  also  a  privity  of  estate  between  them. 
(Litt.  §  132.) 

This  estate  is  created  by  act  of  the  parties  and  not  by  the  act  of 
the  law.  It  is  usually  created  by  a  written  lease,  though  not  always 
so.  A  parol  lease  for  one  year,  or  a  less  period,  is  valid ;  if  it  be  for 
a  longer  term  than  one  year,  it  must  be  created  by  a  deed  or  instru- 
ment in  writing  subscribed  by  the  party  creating  it,  or  by  his  lawful 


ESTATES  FOR  YEARS.  81 

agent  thereunto  authorized  by  writing.     (2  R.  S.  134,  §  6.     3  id. 
220,  5th  ed.)     [See  various  forms  of  Lease,  in  the  Appendix.] 

The  computation  of  time  is  regulated  in  this  state  by  statute,  and 
is  according  to  the  Gregorian  or  new  style.  (2  R.  S.  605.)  To  pre- 
serve a  uniformity  in  business  transactions  it  is  provided,  that  when- 
ever the  term  "year"  or  "years"  is  used  in  any  statute,  deed, 
verbal  or  written  contract,  or  any  public  or  private  instrument  what- 
ever, the  year  intended  shall  be  taken  to  consist  of  three  hundred 
and  sixty-five  days ;  a  half  a  year  of  one  hundred  and  eighty-two 
days ;  and  a  quarter  of  a  year  of  ninety-one  days ;  and  the  added 
day  of  leap  year,  and  the  day  immediately  preceding,  if  they  shall 
occur  in  any  period  so  to  be  computed,  are  to  be  reckoned  together 
as  one  day.  Whenever  the  term  "  month"  or  "  months"  is  used  in 
any  statute,  act,  deed,  verbal  or  written  contract,  or  any  public  or 
private  instrument  whatever,  it  shall  be  construed  to  mean  a  calen- 
dar and  not  a  lunar  month,  unless  otherwise  expressed.  (2R.  S.  606, 
§§  3,  4.) 

If  a  lease  he  from  a  particular  day,  that  day  is  excluded  from  the 
term.  (  Wilcox  v.  Wood,  9  Wend.  346.)  The  legislature  has  adopt- 
ed the  same  rule  of  excluding  the  first,  and  including  the  last  day, 
when  the  time  within  which  an  act  is  to  be  done  is  prescribed. 
{Code  of  Procedure,  407.  Ex  parte  Dean,  2  Cowen,  605,  and  note.) 
The  courts  have  adopted  the  same  rules  in  regulating  their  practice, 
as  in  the  construction  of  statutes  and  contracts  ;  thus  excluding  in 
all  cases  the  first  day,  and  including  the  last,  unless  the  form  of  ex- 
pression indicates  a  different  meaning. 

The  term  "  seisin"  is  not  applicable  to  an  estate  for  years,  for  the 
reason  that  livery  of  seisin  was  not  required  on  the  creating  of  such 
an  estate.  At  common  law  the  delivery  of  the  lease  for  years  did 
not  vest  an  estate  in  the  lessee,  but  merely  gave  him  a  right  to  en- 
ter on  the  land ;  and  until  such  entry,  he  was  not  possessed  of  the 
term  for  years.  He  had  merely  what  is  called  an  inter  esse  termini, 
which  he  might  reduce  to  possession  at  any  time  by  an  actual  entry. 
By  the  operation  of  the  statute  of  uses,  a  lease  under  seal  expressing 
a  consideration,  creates  an  estate  without  an  actual  entry. 

An  estate  for  years  may  be  created  to  commence  at  a  future  day  ; 

though  a  freehold  estate  could  not  be  so  created  independently  of 

the  statute,  which  will  hereafter  bo  considered.     An  estate  for  years 

is  denominated  a  chattel  real.     Having  the  quality  of  immobility  it 

Will.— 6 


82  INCIDENTS  OP  ESTATES  FOR  YEARS. 

savors  of  tlie  realty  ;  and  not  being  indeterminate  in  its  duration, 
it  ranks  with  chattels.  The  estate  goes  to  the  executors  or  admin- 
istrators of  its  owner  on  his  death,  and  not  to  his  heirs  at  law. 
(2  li.  S.  82,  83.)  This  legal  succession  cannot  be  controlled  by  any 
words  of  limitation  in  the  conveyance.  An  estate  for  years  limited 
in  the  lease  to  the  heirs,  &c.  will  nevertheless  go  to  the  executors  or 
administrators. 

An  estate  of  freeliold  cannot  be  created  out  of  an  estate  for  years. 
If  a  life  estate  be  granted  out  of  a  long  term  for  years,  it  is  a  legal 
charge  so  long  as  the  term  lasts  ;  but  it  is  repugnant  to  have  a  free- 
hold out  of  a  term  for  years.  {Butts'  case,  7  Gohe,  23  a,  24  6. 
Saffery  v.  Alder  son,  1  Adol.  &  Ellis,  191.) 

A  lease  may  be  assigned  either  by  the  lessor  or  the  lessee.  The 
lessee  may,  before  entry,  while  his  estate  is  a  mere  inter  esse  termini, 
assign  it  over.  (1  Cruise's  Dig.  245,  Greenl.  ed.)  No  greater  es- 
tate can  be  passed  by  the  grantor  than  he  himself  possessed  at  the 
time  of  the  grant,  but  every  grant  is  conclusive  against  the  grantor 
or  his  heirs  claiming  from  him  by  descent.  (1  H.  S.  739,  §  143.) 
Should  the  tenant  assume  to  convey  a  greater  estate  than  he  had  in 
the  premises,  it  will  not  work  a  forfeiture  of  his  estate,  but  will  pass 
to  the  grantee  of  the  estate  all  the  title,  estate,  or  interest,  which 
such  tenant  could  lawfully  convey.     (Id.  §  145.) 

The  attornment  of  the  tenant  to  a  stranger  is  absolutely  void. 
(1  B.  S.  744,  §  3.)  But  when  the  reversioner  assigns,  the  attorn- 
ment of  the  tenant  to  his  assignee  is  unnecessary.  (1  id.  739,  §  146.) 
The  landlord  may  sever  the  rent  from  the  reversion  and  assign  that 
alone,  or  reserving  to  himself  the  rent,  he  may  assign  the  reversion. 
(Deinarest  v.  Willard,  8  Coiven,  206.  Willard  v,  Tillman,  2  Hill, 
274.)  In  general,  it  is  well  settled  that  the  assignment  of  the  re- 
version, without  restriction  or  exception,  will  carry  to  the  assignee 
the  rent  and  all  the  covenants  running  with  the  land,  the  rent  being 
an  incident  of  the  reversion.     (  Willard  v.  Tillman,  supra.) 

The  incidents  of  an  estate  for  years,  where  the  tenant  is  unre- 
strained by  special  covenants,  are  analogous  to  those  of  tenants  for 
life,  which  have  already  been  considered.  He  is  entitled  to  estovers, 
like  tenants  for  life.  {See  ante,  p.  76.)  He  is  punishable  for  waste. 
He  cannot,  therefore,  lawfully  cut  down  timber  trees,  and  is  bound 
to  keep  the  houses  and  other  buildings  or  fences  in  tenantable  repair. 
If  the  lease  be  of  a  farm  for  agricultural  purposes,  he  is  bound  to 


EMBLEMENTS— FIXTURES.  83 

cultivate  the  farm  in  a  good  husbandlike  manner.  {Middlebrooh  v. 
Corivin,  15  Wend.  170,  171.)  But  the  lease  almost  invariably  con- 
tains covenants  and  stipulations  which  regulate  the  conduct  of  both 
the  parties,  and  specify  the  rights  vi^hich  the  tenant  shall  enjoy,  as 
well  as  the  obligations  which  he  shall  assume. 

If  the  lease  contain  no  provisions  to  the  contrary,  and  there  be  a 
covenant  to  pay  rent,  the  tenant  must  still  pay  rent  though  the  prem- 
ises be  destroyed  by  fire.  {Foivler  v.  Botts,  6  Mass.  R.  63.  Bel- 
four  V.  Weston,  1  D.  &.  E.-^ll.)  Hallett  v.  Wylie,  3  John.^U.) 
Every  prudent  conveyancer  should  insert  in  the  lease  a  suitable  pro- 
vision against  this  contingency.     [See  Appendix.] 

The  right  to  emblements,  we  have  seen,  depends  on  the  uncertain 
termination  of  the  estate.  If  the  lease  be  for  a  certain  number  'of 
years,  and  it  contains  no  covenants  or  stipulations  on  the  subject, 
the  tenant  is  not  entitled  to  emblements.  The  court,  in  Whitmarsh 
V.  Cutting,  10  John.  360,  say  that  it  w^as  the  folly  of  the  tenant 
to  sow  where  he  knew  he  could  not  reap.  But  where  the  determ- 
ination of  the  estate  depends  on  an  uncertain  event  ;  as  where  a 
tenant  for  life  lets  the  estate  for  a  term  of  years,  or  where  b  term  for 
years  is  made  determinable  on  the  life  of  a  particular  person,  the 
tenant  for  years  is  entitled  to  emblements,  in  the  same  manner  as  a 
tenant  for  life.  A  lease  for  years  frequently  contains  a  provision  as 
to  the  outgoing  crop ;  and  should  always  do  so,  to  avoid  disputes 
and  to  insure  the  continued  cultivation  of  the  soil.  [See  Ap- 
pendix.] 

The  right  to  fixtures  placed  on  the  land  by  the  tenant  often  be- 
comes a  subject  of  controversy  at  the  close  of  the  \erm.  As  between 
landlord  and  tenant,  the  rule  for  considering  the  annexations  of  the 
tenant  as  part  of  his  personalty  is  more  liberal  than  between  grantor 
and  grantee.  The  subject  was  elaborately  examined  by  Lord  Ellen- 
borough  in  Elwes  v.  3Iaw,  (3  East,  38.)  The  principle  has  been 
adopted  in  this  state  and  applied  in  numerous  cases.  Thus,  it  has 
been  held  that  the  tenant  may  at  any  time  remove  from  the  premises 
things  affixed  by  him  to  the  building,  for  the  convenience  of  his  trade, 
as  coppers  &c.  for  distilling.  (Eeynolds^v.  Streeter,  5  Cowen,  323.) 
So  also,  a  cider  mill  and  press,  erected  at  his  own  expense,  and  for 
his  own  use,  by  tenant  from  year  to  year,  though  fixed  to  the  soil, 
were  held  to  be  his  personal  property,  and  to  be  removable  by  him 
at  the  end  of  his  term ;  and  even  though  not  taken  till  after  the 


84  FIXTURE— RIGHT  TO  THE  MANURE. 

term,  and  though  he  was  a  trespasser  for  the  entry,  they  were  his. 
(Holmes  v.  Tremper,  20  John,  29.  Mott  v.  Palmer,  1  Comst.  570.) 
So  property,  affixed  to  the  freehold  by  the  tenant  for  manufacturing 
purposes,  is  held  to  belong  to  the  tenant,  and  does  not  pass  to  the 
grantee  of  the  landlord.     {Raymond  v.  White,  7  Cowen,  319.) 

So  engines  and  machinery,  firmly  affixed  to  a  building  by  a  tenant 
for  years  for  the  carrying  on  of  a  business  of  a  personal  nature,  are 
the  personal  property  of  the  tenant  and  removable  at  his  will.  If 
destroyed  by  a  third  person  by  negligence,  the  tenant  and  not  the 
owner  of  the  freehold  can  maintain  an  action  for  the  damages. 
{Cook  V.  The  Champlain  Ti^ansportation  Co.  1  Denio,  91.)  And 
it  seems  that  whether  personal  property  is  so  annexed  to  the  free- 
hold, for  the  purposes  of  trade  or  manufactures,  as  to  become  realty 
and  go  to  the  heir,  rather  than  the  executor,  is  a  question  of  fact. 
{Eovey  v.  Smith,  1  Barb.  372.) 

Some  kinds  of  fixtures  and  annexations  are  treated  by  the  law, 
independently  of  any  covenant  or  agreement,  as  personal  property 
removable  by  the  tenant.  Those  alluded  to  in  the  foregoing  cases 
are  of  that  description.  Others  depend  on  the  conventional  arrange- 
ments of  the  parties.  Thus  fences  and  trees  are,  in  their  own  na- 
ture, real  estate  to  the  same  extent  as  houses  and  other  structures 
on  the  land.  But  they  may,  by  the  agreement  between  the  parties, 
be  treated  as  the  personal  property  of  the  tenant,  and  not  as  part 
of  the  soil,  the  property  of  the  reversioner.  {3Iott  v.  Palmer, 
1  Comst.  564.     Herlakenden' s  case,  4  Coke,  63  h.) 

In  Penton  v.  Rohart,  (2  East,  90,)  Lord  Kenyon  intimated  that 
gardeners  and  nurserymen  may  remove  trees  in  the  necessary  course 
of  their  trade,  and  he  was  disposed  to  extend  the  same  rule  to  green- 
houses, hot-houses  &c.  erected  on  the  demised  premises.  But  Lord 
Ellenborough,  in  Ehoes  v.  3Iaw,  (3  East,  5Q,)  while  admitting  the 
rule  as  to  gardeners  and  nurserymen,  questioned  it  as  to  the  owners 
of  green-houses  and  hot-houses.  It  is  doubtless  competent,  by  agree- 
ment between  the  parties,  to  sever  such  erections  from  the  freehold, 
and  thus  allow  the  tenant  to  remove  them  like  other  fixtures  for  the 
purposes  of  trade.  Though  it  is  believed  that  the  suggestion  of 
Lord  Kenyon  would  be  generally  concurred  in,  it  is  desirable  to  re- 
move all  doubts  on  the  subject  by  a  provision  in  the  lease. 

When  a  farm  is  let  for  agricultural  purposes,  and  the  lease  con- 
tains no  stipulation  on  the  subject,  and  there  is  no  special  custom 
to  the  contrary,  the  manure  made  upon  the  farm  does  not  belong  to 


MAXURE— TEADE  FIXTURES.  85 

the  tenant  but  to  the  farm.  The  tenant  has,  therefore,  no  more 
right  to  dispose  of  it  to  others  or  remove  it  himself  from  the  prem- 
ises, than  he  has  to  dispose  of  or  remove  a  fixture.  {3Iiddlehrook 
V.  Corioin,  15  Wend.  171.     Goodrich  v.  Jones,  2  Hill,  142.) 

With  regard  to  fencing  materials  on  a  farm  which  are  temporarily 
detached,  without  an  intent  to  divert  them  to  other  uses,  in  the 
absence  of  any  agreement  to  the  contrary,  they  are  to  be  treated  as 
a  part  of  the  realty,  in  the  same  manner  as  if  they  had  been  left 
standing.  {Goodrich  v.  Jones,  siqwa.)  The  same  rule  applies  to 
hop-poles,  used  necessarily  in  cultivating  hops  which  were  takea 
down,  for  the  purpose  of  gathering  the  crop,  and  piled  in  the  yard, 
with  the  intention  of  being  replaced  in  the  season  of  hop  raising, 
{Bishop  V.  Bishop,  1  Kern.  123.)  Even  as  between  grantor  and 
grantee,  it  seems  that  an  article  to  be  treated  as  a  fixture  need  not 
be  constantly  fastened  to  the  realty.  {Walker  v.  Sherman,  20 
Wend.  655,  per  Coiven,  J.) 

The  fixtures  heretofore  considered  have  been  such  as  were  erected 
by  the  tenant  himself  for  agricultural  and  mechanical  purposes,  or 
for  the  benefit  of  trade.  The  right  of  the  tenant  to  remove  them 
depends  on  the  fact  that  they  were  placed  on  the  premises  by  him- 
self, for  his  own  convenience,  and  with  no  intention  to  make  them 
a  part  of  the  freehold.  The  reasons  on  which  the  decisions  are  based 
do  not  authorize  a  tenant  to  remove  fixtures  belonging  to  the  prem- 
ises at  the  time  he  received  his  lease.  The  moment  such  fixtures 
are  severed,  the  title  to  them  vests  in  the  landlord,  and  the  tenant, 
by  his  wrongful  act  forfeits  all  future  interest  in  them.  The  removal 
of  such  fixtures  is  as  much  waste  as  the  cutting  of  timber  by  the 
tenant,  who  has  no  special  authority  for  the  purpose.  Such  timber, 
the  moment  it  is  cut,  vests  in  the  owner  of  the  land,  who  may  main- 
tain an  action  to  recover  its  value  against  any  one  in  possession, 
though  a  bona  fide  purchaser  from  the  occupant.  {Blooers  v.  Waite, 
3  Wend.  104.) 

There  is  still  another  class  of  fixtures  not  connected  with  trade 
or  for  agricultural  or  mechanical  purposes  ;  but  which  are  afiixed  to 
the  demised  premises  by  the  tenant  for  the  purpose  of  ornament  or 
convenience.  The  question  with  regard  to  the  right  of  the  tenant 
to  remove  these  has  been  more  favorably  considered  by  the  courts  in 
modern  times  than  in  the  time  of  Lord  Coke.  "  Many  things,"  said 
Lord  Mansfield,  in  Laioton  v.  Salmon.   (1  H.  Black.  260,  in  notis,) 


86  FIXTURES— RIGHTS  OF  HEIRS— EXECUTORS. 

"  may  now  be  taken  away  which  could  not  be  formerly,  such  as  erec- 
tions for  carrying  on  any  trade,  marble  chimney-pieces  and  the  like, 
when  put  up  by  the  tenant."  And  Lord  Ellenborough,  in  Elives  v. 
Menu,  (3  East,  53,)  after  speaking  of  trade  fixtures,  says  the  indul- 
gence in  favor  of  the  tenant  for  year  during  the  term  has  been  since 
carried  still  further ;  and  he  has  been  allowed  to  carry  away  any 
matters  of  ornament,  as  ornamental  marble,  chimney  pieces,  pier 
glasses,  hangings,  wainscot  fixed  only  by  screws,  and  the  like.  In 
Lee  V.  Risden,  (7  Taunt.  188-191,)  Chief  Justice  Gibbs  mentions 
wainscots  screwed  to  the  wall,  trees  in  a  nursery  ground,  which  when 
severed  are  chattels,  but  standing  are  part  of  the  freehold,  certain 
grates  and  the  like,  as  fixtures  which  tenant  for  years  may  sever 
during  his  term. 

It  has  also  been  held  that  stoves,  cooUng-co2opers,  mash-tubs, 
luater-tubs  and  blinds  were  removable  as  between  landlord  and  tenant. 
(Colegrove  v.  Bias  Cantos,  1  Barn.  &  Ores.  77.)  Some  of  these 
articles  were  not  merely  matters  of  ornament  but  of  general  utility. 

It  can  hardly  be  supposed  that  the  mode  of  annexation,  whether 
with  screws  or  otherwise,  can  be  further  material  than  as  affordincr 
some  evidence  of  the  intention  with  which  the  tenant  made  the  an- 
nexation at  the  time. 

It  has  always  been  considered,  from  the  earliest  time,  that  the 
tenant  should  make  the  removal,  if  he  makes  it  at  all,  du7^ing  the 
continuance  of  the  term.  The  omission  to  do  so  would  afford  strong 
evidence  of  his  intention,  to  relinquish  to  the  reversioner  his  claim 
to  the  annexed  article.  Moreover,  after  the  expiration  of  the  term 
and  the  relinquishing  of  the  possession,  he  could  not  enter  to  make 
the  removal,  without  being  a  trespasser.  {Poole's  case,  1  Salk.  368. 
Ex  parte  Quincy,  1  AtJc.  477.) 

This  principle  applies  to  every  species  of  fixture,  whether  for  trade, 
manufacturing  purposes,  or  for  ornament  or  convenience. 

The  revised  statutes  of  New  York  attempted  to  define  with  accu- 
racy the  relative  rights  of  the  heir  and  executor  with  respect  to 
fixtures,  but  they  do  not  provide  for  the  claims  of  other  parties. 
As  between  the  heir  and  the  executor  it  is  enacted  that  things  an- 
nexed to  the  freehold,  or  to  any  building  for  the  purpose  of  trade  or 
manufacture,  and  not  fixed  into  the  wall  of  a  house  so  as  to  be 
essential  to  its  support,  go  to  the  latter  and  must  be  inserted  in  the 
inventory.  (2  it.  S.  82,  §  6.)  The  mode  of  annexation,  as  w^hether 
it  is  done  by  a  screw  or  a  nail,  is  not  made  the  criterion.     The  arti- 


FIXTURES— STOVES  PUT  UP  FOR  USE.  87 

cles  to  be  treated  as  going  to  the  executor  in  preference  to  the  heir, 
must  he  fixed  into  the  wall  so  as  to  be  essential  to  its  support.  It 
was  said  by  the  chancellor,  in  House  v.  House,  (10  Paige,  163,)  that 
it  was  the  intention  of  the  legislature,  by  the  provision  there  inserted, 
to  put  the  executor  or  administrator  upon  the  same  footing  as  a 
tenant  with  respect  to  the  right  to  fixtures.  But  the  chancellor 
thought  it  was  impossible  to  define,  in  a  short  sentence  of  three  lines, 
what  was  to  be  considered  a  part  of  the  freehold  itself,  or  what  were 
mere  fixtures,  or  things  annexed  to  the  freehold  for  the  purpose  of 
trade  or  manufactures.  He  thoufjht  we  must  still  so  back  to  the 
common  law  and  the  adjudged  cases  for  the  purpose  of  ascertaining 
which  is  a  substantial  part  of  the  freehold,  and  what  is  a  mere  fixture 
or  thing  annexed  to  the  freehold.  In  that  case,  he  held  that  the 
water  wheels,  mill  stones,  running  gear  and  bolting  apparatus  of  a 
grist  and  flouring  mill,  and  other  fixtures  of  the  same  character,  are 
constituent  parts  of  the  mill,  and  descend  to  the  heirs  at  law  as  real 
property;  and  do  not  pass  to  the  executors  or  administrators  of  the 
deceased  owner  of  the  mill  as  a  part  of  his  personal  estate. 

It  is  quite  obvious  that  those  articles,  though  essential  to  the  op- 
eration of  the  mill  luere  not  essential  to  its  support.  They  might  all 
be  taken  out  and  the  mill  would  stand,  though  it  would  cease  to  be 
of  any  value  for  the  purposes  of  a  mill 

Under  the  head  of  articles  annexed  by  the  tenant  for  his  con- 
venience may  be  included,  as  has  already  been  suggested,  stoves  put 
up  for  use.  The  stove  is  an  article  of  prime  necessity  in  a  north- 
ern climate,  and  of  essential  utility  at  all  seasons  in  the  year.  It  is 
necessary  for  safety  that  it  should  communicate  with  a  chimney  and 
be  attached  at  least  by  temporary  fastenings.  This  is  an  absolutely 
indispensable  article  in  a  house  destitute  of  a  fireplace.  'Still  it  is 
not  a  fixture  which  the  tenant  cannot  remove,  nor  is  it  so  treated 
between  grantor  and  grantee.  {Freeland  v.  Southworth,  24  Wend. 
191.)  Such  a  stove  is  indeed  a  part  of  the  furniture  of  the  house, 
which  can  be  removed  and  replaced  by  similar  articles  at  pleasure. 
It  forms  no  substantial  part  of  the  building,  and  is  not  essential  to 
its  support. 

The  legislature,  moreover,  have  evidently  treated  stoves  put  up 
for  use,  or  kept  in  use  by  a  family,  as  a  part  of  pesonalty  and  as 
exempt  from  the  claims  of  creditors,  either  by  way  of  administration 
or  execution.  Hence  they  are  inserted  in  the  inventory  of  the  personal 
estate,  but  not  treated  as  assets  for  the  payment  of  deb%.but  ar- 


S8  FIXTURES— BETWEEN  VENDOR  AND  VENDEE. 

tides  of  indispensable  family  use.  (2  li.  S.  83,  §  9.)  And  hence 
too  they  are  exempt  from  execution  against  the  tenant.  (Id.  367, 
§  22.)  If  such  annexations  were  part  of  the  freehold,  these  provis- 
ions would  not  have  been  made. 

The  question  with  respect  to  the  right  to  remove  such  annexations 
as  are  usually  classed  with  fixtures,  is  not  confined  to  controversies 
between  the  landlord  and  his  tenant ;  but  grows  out  of  various 
other  relations  in  life.  It  sometimes  arises  between  the  mortgagor 
and  mortgagee,  and  sometimes  between  the  landlord  and  the  execution 
creditor  of  the  tenant.  In  both  respects  its  was  noticed  in  Ci^esson 
V.  Stout,  (17  John.  116.)  In  that  case  it  was  held,  in  substance, 
that,  as  between  mortgagor  and  mortgagee,  spinning  frames  and 
carding  machines  in  a  mill,  the  former  fastened  to  the  upper  floor 
by  upright  pieces,  and  having  cleats  nailed  to  the  floor  round  the 
feet,  and  the  latter  fastened  to  the  floor  by  wooden  pins,  were  per- . 
fional  property.  The  same  articles  were  also  held  to  be  liable  to  an 
execution  against  the  tenant  by  whom  they  were  put  up.  The  doc- 
rtrine  of  the  courts  in  Cresson  v.  Stout,  supra,  met  the  approbation 
of  the  revisers,  and  formed  a  portion  of  the  authority  for  some  of  the 
-enactments  of  the  legislature.     (3  B.  S.  727,  2cZ  ed.  Revisers'  Notes.) 

In  Walker  v,  Sherman,  (20  Wend.  636,)  the  question  arose  in 
partition,  in  which  machinery  used  in,  but  not  attached  to  a  mill, 
was  treated  as  personal  property.  The  whole  doctrine  with  respect 
to  fixtures  was  elaborately  discussed  by  the  court,  and  the  cases  in 
the  neighboring  states  examined. 

In  other  cases  the  question  has  been  examined  as  between  vendor 
and  vendee.  {Miller  v.  Plumh,  6  Coioen,  QQ5.)  In  this  case 
Wood  worth,  J.  approves  the  classification  made  by  Lord  Ellenbo- 
rough  in  Ehoes  v.  3Iaw,  (3  East,  38.)  of  the  parties  between  whom 
the  question  usually  arises  ;  1st,  between  heir  and  executor ;  2d,  be- 
tween the  executors  of  tenant  for  life  and  the  remainderman  and 
reversioner ;  and  3d,  between  landlord  and  tenant ;  and  cited  with 
approbation  the  remarks  of  his  lordship,  that  in  the  case  between 
the  heir  and  the  executor  the  rule  obtained  with  the  most  rigor,  in 
favor  of  the  inheritance  and  against  the  right  to  disannex  there- 
from. The  other  two  cases  he  considered  as  belonging  to  the  same 
principle ;  thus  putting  the  tenant  for  life  and  for  years  on  the  like 
footing.  But  he  thought  the  case  between  heir  and  executor  and 
vendor  and  vendee  was  widely  different.  The  ancestor,  said  the 
learned  judge,  or  vendor,  has  the  absolute  control,  not  only  of  the 


FIXTURES— CHARTER  AND  DEEDS.  89 

land,  but  of  the  improvements.  The  heir  and  executor  are  both 
representatives  of  the  ancestor  ;  the  vendor  has  an  election  to  sell 
or  not  to  sell  the  inheritance.  If  he  does  sell,  the  fixtures  pass. 
This  case  was  decided  in  1827,  and  before  the  revised  statutes  were 
enacted,  and  before  the  decision  of  the  chancellor  in  House  v.  House, 
su2?ra. 

Although  the  legal  eifect  of  putting  a  building  upon  another's 
land  is  to  make  it  a  part  of  the  freehold  of  the  latter,  yet  the  legal 
effect  may  be  controlled  by  an  express  agreement.  If  the  parties 
agree,  in  terms,  that  a  dwelling  house  shall,  as  between  them,  be 
considered  strictly  a  personal  chattel,  it  takes  that  character.  [Smith 
V.  Benson,  1  Hill,  178,  per  Coiven,  J.) 

It  is  not  absolutely  necessary  that  there  should  be  at  all  times  a 
pJiysical  aniiexation  of  the  article,  to  constitute  it  a  part  of  the 
realty.  There  may  be  a  temporary  suspension  of  such  annexation, 
without  the  depriving  the  article  of  its  privilege  as  part  of  the 
realty.  This  depends  on  the  nature  of  the  transaction,  and  the  in- 
tention of  the  parties.  The  cases  already  referred  to,  namelj^,  of 
fencing  materials  and  hop  poles,  temporarily  detached  from  the  soil, 
are  instances  in  point.  It  has  been  settled,  says  Cowen,  J.  in  Walk- 
er V.  Sherman,  supra,  ever  since  the  year  books,  14  Henry  8th,  25, 
that  the  stones  of  a  grist  mill,  though  moved  for  the  purpose  of  be- 
ing picked,  are  still  a  part  of  the  freehold,  and  will  pass  by  a  sale 
of  the  land. 

So  also,  by  the  grant  of  land  with  the  mill  thereon,  the  waters, 
flood  gates,  &c.  which  are  necessary  for  the  use  of  the  mill,  pass  as 
incident  to  the  principal  subject  of  the  grant.  (Le  Roy  v.  Piatt, 
4  Paige,  77.)  So  doors,  windows,  locks,  keys,  window  blinds,  light- 
ning rods,  and  the  like,  are  treated  as  constructively  annexed, 
though  occasionally  removed  for  repairs  or  otherwise.  {Walker  y. 
Sherman,  20  Wend.  646,  7.) 

In  like  manner  deer  in  a  park,  fish  in  a  pond,  doves  in  a  dove- 
house,  charters  or  deeds  of  an  estate,  and  the  chest  containing  them, 
though  never  strictly  annexed  to  the  land,  pass  to  the  vendee  with 
the  deed  of  the  land.  {Idem.)  They  are  exceptions  to  the  gen- 
eral rule,  and  are  by  some  authors  treated  as  heii'-looms  rather  than 
fixtures.  If  the  vendor  intends  to  reserve  them,  the  deed  of  convey- 
ance should  contain  an  appropriate  exception. 

With  respect  to  growing  crops,  in  addition  to  what  has  been  said 
under  the  head  of  emblements,  (supra,)  it  is  proper  to  remark,  that 


90  FIXTURES— LETTING  LAND  ON  SHARES. 

growing  grass,  fruit  and  trees,  are  parcel  of  the  land,  and  go  to  the 
heir,  rather  than  the  executor.  {Bank  of  Lansingburgh  v.  Crary, 
1  Barb.  542.  Warren  v.  Leland,  2  id.  613.)  On  the  foreclosure 
of  a  mortgage,  they  pass  to  the  purchaser  as  against  the  lessee  of 
■the  mortgagor,  whose  lease  was  subsequent  to  the  mortgage.  {Lake 
V.  King,  8  Wend.  584.)  This  is  upon  the  principle  that  as  between 
mortgagor  and  mortgagee,  the  former  has  no  right  to  lease  the  prem- 
ises, and  that  on  the  foreclosure,  the  mortgagee  or  those  succeeding 
to  him  is  in  by  title  paramount,  thus  vesting  in  him  not  only  the 
estate  mortgaged  but  also  the  emblements.  (McKercJier  v.  Haw- 
ley,  16  John.  292.  Jackson  v.  Hojjkins,  18  id.  487.  Jackson 
V.  Dickerson,  6  Coioen,  147.  Aldeck  v.  Reynolds,  1  Barb.  Cli.  613. 
Shejxird  v.  Fhilbrick,  2  Den.  174.  Gillet  v.  Balcolm,  6  Barb.  370.) 
The  question  with  respect  to  fixtures  sometimes  arises  between 
the  executors  of  tenant  for  life  and  the  remainderman  or  reversioner. 
We  have  already  anticipated  all  that  need  be  said  on  that  subject. 
The  same  principles  of  public  policy  which  encourage  the  indus- 
try of  the  tenant  for  years,  have  their  application  to  the  tenant 
for  life. 

There  is  sometimes  a  question  in  regard  to  estates  for  years, 
whether  the  tenant  have  an  interest  in  the  estate  or  be  only  a  serv- 
ant or  laborer.  In  Jackson  v.  BroivneU,  (1  John.  207,)  it  was 
held  that  letting  land  for  one  year,  to  cultivate  upon  shares,  creates 
the  relation  of  landlord  and  tenant,  and  raises  the  lessee  from  the 
rank  of  a  laborer  or  servant  to  that  of  a  tenant,-  But  if  land  be  let 
upon  shares  for  a  single  crop,  it  does  not  amount  to  a  lease,  and  the 
owner  of  the  land  alone  can  bring  an  action  for  injury  to  the  crop. 
{Bradish  v.  Schenck,  8  John.  151.) 

The  letting  of  land  on  shares  is  not  technically  a  lease.  In  such 
a  case  the  parties  are  tenants  in  common  ot  the  crops.  (Casivell  v. 
Dietrich,  15  Wend.  379.)  But  where  in  the  letting  for  a  number 
of  years,  the  tenant  rendering  and  paying  one  half  the  crops  as  rent, 
the  interest  in  the  soil  passes  to  the  tenant.  In  such  a  case  the  in- 
terest in  the  crops  until  an  actual  division  is  made,  is  in  the  tenant, 
and  the  crops  belong  exclusively  to  him.  (Stewart  v.  Doughty, 
9  Joh7i.  108.     Caswell  v.  Dietrich,  supra.) 

It  is  proper  to  add,  in  this  connection,  that  the  present  constitu- 
tion of  New  York  provides  that  no  lease  or  grant  of  agricultural 
land  for  a  longer  period  than  twelve  years,  thereafter  made,  in  which 


SURRENDER.  91 

shall  be  reserved  any  rent  or  service  of  any  kind,  shall  he  valid. 
{Constitution  of  1846,  art.  1,  §  14.) 

There  are  two  other  incidents  of  estates  for  years,  or  for  life,  which 
will  be  briefly  noticed  in  this  place,  viz.  a  surrender  and  a  merger. 

A  surrender  is  defined  by  Coke  to  be  a  yielding  up  of  an  estate 
for  life  or  years  to  him  that  hath  an  immediate  estate  in  reversion 
or  remainder.  (Co.  Litt.  338  a.)  It  can  only  be  to  the  person  who 
has  the  reversion  or  remainder.  {Springstein  v.  Schermerliorn,  12 
John.  357.)  Where  the  land  is  leased  in  fee  there  can  be  no 
technical  surrender,  because  there  is  no  j^arty  having  the  reversion 
or  remainder  who  can  take  it.     (Id.) 

If,  however,  the  lessee,  during  the  term  in  such  a  case,  accepts 
a  new  lease  of  the  same  premises  from  the  lessor,  the  first  is  deemed 
virtually  surrendered  or  released,  because  the  acceptance  admits  the 
power  of  the  lessor  to  lease,  which  power  he  could  not  legally  have 
without  a  surrender  or  release  ;  but  this  presumption,  it  is  said, 
cannot  be  indulged  against  common  sense.  {Id.  Van  Rensselaer 
V.  Penniman,  6  Wend.  569.)  The  acceptance  by  the  tenant  of  a 
new  lease  of  the  same  premises  from  the  same  lessor,  has  been  said 
by  the  court  to  be  a  virtual  surrender  in  law  of  the  first  lease. 
{Livingston  v.  Potter^  16  John.  28.) 

The  statute  provides  for  the  case  of  tenants  who  have  under 
leases  from  a  tenant  surrendering  to  the  chief  landlord,  for  the  pur- 
pose of  having  a  renewed  lease,  and  prevents  their  rights  from 
being  infringed  by  such  surrender.  It  provides  that  the  new  lease 
to  be  made  by  the  chief  landlord  shall  be  good  and  valid,  without  a 
surrender  of  the  under  leases  derived  out  of  the  one  surrendered. 
It  provides  that  the  chief  landlord,  his  lessee  and  the  holders  of  such 
under  leases,  shall  enjoy  all  their  rights  and  interests  in  the  same 
manner  and  to  the  same  extent  as  if  the  original  lease  had  been 
continued ;  and  it  gives  to  the  chief  landlord  the  same  remedy  by 
entry  upon  the  demised  premises  for  the  rents  and  duties  secured  by 
such  new  lease,  so  far  as  the  same  do  not  exceed  the  rents  and  duties 
reserved  in  the  original  lease  so  surrendered.  (1  R.  S.  744,  as  mod- 
ified by  ch.  274  of  L.  of  1846.  3  R.  8.  34,  §  2,  5th  ed.  Conkey  v. 
Hart,  4  Kernan,  22.)  The  subtenants  are  not  injured,  because  as 
to  them  their  rights  continue  as  if  the  original  lease,  out  of  which 
their  estate  is  derived,  had  remained  unaltered  and  in  force.  It  is 
also  a  virtual  recognition  of  the  right  of  the  tenant  to  surrender  to 
the  landlord,  whatever  may  have  been  the  nature  of  his  lease. 


92  MERGER. 

The  doctrine  of  merger  does  not,  in  all  its  bearings,  belong  to  the 
present  section.  It  is  an  important  branch  of  the  law  of  real  estate, 
which  we  have  treated  in  a  separate  chapter.  [See  part  2,  chap.  4.] 
Its  connection  with  the  law  of  life  estates  and  of  estates  less  than 
freehold,  renders  it  proper  briefly  to  notice  it  in  this  connection. 

The  definition  of  merger  is  not  easily  framed.  It  is  thus  defined 
by  an  eminent  author :  Whenever  a  greater  estate  and  a  less  coincide 
and  meet  in  one  and  the  same  person,  without  any  intermediate 
estate,  the  less  is  immediately  annihilated,  or  is  said  to  be  merged, 
that  is,  sunk  or  drowned  in  the  greater.  (2  Bl.  Com.  177.  Preston 
on  Merger,  6.) 

With  regard  to  the  merger  of  terms  in  each  other,  the  object  is  to 
accelerate  the  possession,  or  at  least  the  estate  in  which  the  merger 
takes  place.     {Preston  on  31erger,  6,  7.) 

There  is  a  strong  analogy  between  surrender  and  merger.  It  is 
said  by  a  learned  writer  on  this  subject,  that  there  is  not  any  case 
in  which  merger  will  take  place,  unless  the  right  of  making  and  ac- 
cepting a  surrender  resides  in  the  several  persons  between  whom  the 
transaction  which  causes  the  determination  of  one  of  these  estates 
takes  place.     {Preston  on  Ilerger,  23.) 

An  example  of  merger  of  the  life  estate  in  the  reversion  may  be 
thus  stated  :  If  A.,  tenant  for  life  with  reversion  to  B.  in  fee,  sur- 
renders his  life  estate  to  B.,  or  if  B.  releases  to  A.  in  fee,  the  life 
estate  of  A.  is  in  either  case  absorbed  in  the  inheritance.  The  neces- 
sary effect  of  this  operation  is  to  accelerate  the  estate  in  reversion. 
The  reversionary  estate  is  not  enlarged  by  this  union  of  the  life 
estate — it  is  still  a  fee  simple — but  it  is  brought  sooner  into  pos- 
session and  enjoyment. 

The  above  is  as  simple  a  case  as  can  be  put.  If  there  were  an 
intermediate  estate  between  the  tenant  for  life  and  the  reversioner 
in  fee,  the  merger  would  not  take  place.  Nor  would  there  be  a 
merger  if  the  one  estate  was  held  in  auter  droit,  and  the  other  in 
the  party's  own  7'ight.     {Preston  on  Merger,  50.) 

A  merger  sometimes  has  a  partial  operation.  Thus,  where  a  lessee 
of  land  became  a  purchaser  of  an  undivided  moiety  of  the  rent  or 
reversion,  the  lease  and  rent  are  merged  and  extinguished  as  to  that 
portion  of  the  premises.     {Lansing  v.  Price,  4  Paige,  639.) 

It  is  an  essential  requisite  to  merger,  that  the  estate  in  immediate 
remainder  or  reversion  must  be  as  large  in  quantity  of  interest  as  the 
preceding  estate,  o\  larger  than  that  estate.     If  the  lessee  for  years 


ESTATES  AT  WILL.  93 

afterwards  takes  a  conveyance  from  the  reversioner  of  an  estate  for 
life  to  take  effect  immediately,  the  estate  for  years  is  merged  and 
extinguished,  because  the  life  estate  is  larger  than  the  estate  for 
years.  But  if  there  be  a  grant  to  A.  for  life,  and  subsequently  a 
grant  of  the  reversion  for  twenty  years,  in  that  case  A.  has  both 
estates  without  a  merger  of  the  one  in  the  other.  The  reason  is 
that  the  estate  in  the  reversion  is  limited  to  twenty  years,  which  is 
less  than  the  preceding  estate  which  was  for  life.  If,  therefore,  A. 
should  die  within  the  twenty  years,  though  his  life  estate  would 
thus  be  determined,  the  residue  of  the  term  for  years  would  vest  in 
his  executors  or  administrators,  and  be  assets  in  their  hands. 

The  rule  may  be  further  illustrated  by  other  cases.  Suppose  A.  is 
tenant  for  life,  remainder  to  B.  for  life,  and  A.  surrender  to  B.,  A.'s 
estate  merges  in  that  of  B.  The  reason  is  that  B.'s  estate  for  his  own 
life  is  to  him  greater  than  A.'s  estate,  which  to  B  is  an  estsiie pur  auter 
vie.  In  this  case  the  less  estate  merges  in  the  greater.  But  if  the  case 
be  reversed,  and  B.  conveys  his  estate  in  reversion  to  A.,  no  merger 
■will  ensue — for  the  reason  that  B.'s  estate  is  to  A.  less  than  A.'s  own 
estate,  and  therefore  A.'s  ownership  will  embrace  the  duration  of 
both  estates.     {Boivles'  case,  11  Bep.  73,  4th  resolution.) 

It  has  sometimes  been  made  a  question  whether  a  term  for  years 
would  merge  in  another  term  in  remainder  or  reversion.  If  the  ten- 
ant for  one  hundred  years  underlets  a  part  of  the  demised  premises 
to  B.  for  ten  years,  it  is  obvious  that  the  tenant  for  one  hundred 
years  is,  with  respect  to  B.'s  tenancy,  a  reversioner,  and  capable  of 
accepting  a  surrender.  Should  such  surrender  be  made,  no  reason 
is  perceived  why  the  under  lease  would  not  be  merged  in  the  estate 
for  one  hundred  years.  After  the  surrender,  the  original  term  will 
be  in  the  same  state  in  point  of  duration  of  title,  and  right  of  enjoy- 
ment, except  by  reason  of  mesne  incumbrances,  as  if  no  under  lease 
had  been  created.     (Preston  on  3Ierger,  182,  200.) 

The  doctrine  of  merger  will  be  considered  more  at  large  in  a  sub- 
sequent chapter.     [See  post,  Part  II,  ch.  4.1 

Section  II. 

Of  estates  at  will,  and  tenancy  from  year  to  year. 

The  connection  between  these  two  estates  is  so  intimate  that  they 
may  both  be  treated  together  in  the  same  section. 

"  Tenant  at  will,"  says  Littleton,  (§  68,)  "  is  when  lands  or  tene- 


94  ESTATES  AT  WILL,  AND  FROM  YEAR  TO  YEAR. 

ments  arc  let  Ly  one  man  to  another,  to  liave  antl  to  hold  to 
him  at  the  will  of  the  lessor,  by  force  of  which  the  lessee  is  in  pos- 
session. In  this  case  the  lessee  is  called  tenant  at  will,  because  he 
hath  no  certain  or  sure  estate;  for  the  lessor  may  put  him  out  at 
what  time  it  pleaseth  hiui."  But  according  to  Coke  (1  Inst.  55  a) 
every  such  estate  is  at  the  will  of  both  j)arties.  Th()U«;h  the  estate 
be  stated  to  be  at  the  will  of  the  lessor,  the  law  implies  that  it  is  at 
the  will  of  the  lessee  also.  In  like  manner  should  it  be  stated  to  be 
at  the  will  of  the  lessee,  the  law  would  imply  that  it  was  at  the  will 
of  the  lessor  also.  A  person  who  occupies  land,  when  no  terms  are 
prescribed,  and  without  a  reservation  or  the  i>ayment  of  rent,  is  a 
tenant  at  will.     (Jackson  v.  Bradt,  2  Caines,  169.) 

Estates  at  will  are  not  usually  created  by  lease  in  express  words. 
They  have  been  found  to  be  inconvenient,  and  exist  only  notionally. 
{Timmins  v.  Bowlinson,  3  Bur.  16*09.  Co.  Litt.  55  a,  note  3  of  Mr. 
Har grave.  Jackson  v.  Bnjan,  1  John.  324,  per  Tliompson,  J. 
Same  v.  Aldrich,  13  id.  110.)  It  has  been  said  that  a  parol  gift 
of  lands  creates  a  tenancy  at  will.  {Jackson  v.  Uogers,  1  John.  Ch. 
33.  2  Caines,  6,  314.)  When  no  express  term  is  agreed  upon  these 
estates  are  considered  as  estates  from  year  to  year,  and  each-  party  is 
bound  to  give  the  other  a  reasonable  notice  to  quit. 

A  tenant  at  will  has  no  such  estate  that  he  can  convey  to  a  third 
person.  If  he  assigns  to  another,  the  latter,  on  entering,  becomes  a 
trespasser,  and  may  be  so  treated  by  the  landlord. 
■  If  the  estate  be  determined  by  the  landlord,  the  tenant  is  entitled 
to  the  emblements.  But  this  is  otherwise  when  it  is  determined  by 
his  own  act.     {Sfetvart  v.  Doughty,  9  John.  108.) 

The  most  obvious  way  of  putting  an  end  to  a  tenancy  at  will  is 
by  an  express  declaration  to  that  eiFect  by  either  party.  The  stat- 
ute provides  that  the  tenancy  may  be  determined  by  the  landlord's 
giving  one  month's  notice  in  writing  to  the  tenant,  requiring  him 
to  remove  therefrom.  (1  it.  S.  745,  §  7.)  At  the  expiration  of 
the  month  from  the  service  of  such  notice,  the  landlord  may  re-enter, 
or  proceed  in  the  manner  prescribed  by  law,  to  remove  such  tenant, 
without  any  further  or  other  notice  to  quit.  {Id.  §  9.  Post  v.  Post, 
14  Barh.  253.)  If  the  tenant  siiall  give  notice  of  his  intention  to 
quit,  and  shall  not  accordingly  deliver  up  the  possession  thereof  at 
the  time  specified  in  the  notice,  he  or  his  executors  or  administrators 
are  made  liable  to  pay  thenceforth  to.  the  landlord,  his  heirs  or 
assigns,  double  the  rent  which  he  should  otherwise  have  paid,  at  the 


ESTATE  FROM  YEAR  TO  YEAR.  95 

Bame  time  and  the  same  manner  as  the  single  rent.  And  such 
double  rent  shall  be  continued  to  be  paid  during  all  the  time  such 
tenant  shall  continue  in  possession  as  aforesaid.  (1  B.  S.  745,  §  10. 
Hall  V.  Ballentine,  7  John.  376.) 

There  are  other  modes  of  determining  the  tenancy.  It  will  be  de- 
termined by  the  landlord's  selling  the  premises.  {Jackson  v.  Al- 
drich,  13  John.  106.) 

Any  act  of  ownership  of  the  landlord  hostile  to  that  of  the  tenant, 
and  any  act  of  desertion  of  the  tenant,  is  in  either  case  a  determin- 
ation of  the  estate.  So  is  an  act  of  waste  by  the  tenant.  (Post  v. 
Post,  14  Barh.  254.     Phillips  v.  Covert,  7  John.  A.) 

The  leaning  of  the  courts  in  modern  times  has  been  against  con- 
sidering demises  when  no  limitation  for  the  termination  of  the  estate  is 
fixed  into  estates  at  will,  but  they  have  held  them  to  be  estates  from 
year  to  year.  This  latter  species  of  estate  has  nearly  superseded 
estates  at  will.  When  there  was  a  lease  at  a  certain  annual  rent, 
and  the  tenant  holds  over,  after  the  expiration  of  the  lease,  without 
any  new  agreement  as  to  the  rent,  the  law  implies  that  he  holds 
from  year  to  year  at  the  original  rent.  {Ahel  v.  Baddiff,  15  John. 
505.  Evertsen  v.  Sawyer,  2  Wend.  507.  Pugsley  v.  Aikin, 
1  Kern.  496.) 

It  was  said  by  the  court,  in  Post  v.  Post,  (supra,)  that  the  reserva- 
tion of  an  annual  rent  is  the  leading  circumstance  that  turns  leases 
for  uncertain  terms  into  leases  from  year  to  year.  {Jackson  v. 
Bradt,  2  Caines,  174.)  The  difference  between  a  tenancy  at  will, 
and  from  year  to  year,  with  respect  to  the  termination  thereof  by 
notice  from  the  landlord,  is  that  in  the  former  case  a  month's  notice 
to  quit  from  the  landlord  requiring  the  tenant  to  remove  from  the 
premises,  without  reference  to  the  time  of  the  commencement  of  the 
tenancy  is  only  required  ;  (1  B.  S.  745,  §  7 ;)  whereas,  in  the  other 
case,  the  notice  must  be  to  determine  the  tenancy  at  the  end  of  the 
year.     {Post  v.  Post,  14  Barb.  257.) 

The  estate  of  a  tenant  from  year  to  year  is  less  frail  than  that  of 
a  tenancy  at  will.  In  the  latter  case,  any  entry  by  the  landlord,  or 
act  done  inconsistent  with  the  continuance  of  the  tenancy,  puts'  an 
end  to  it  at  common  law ;  but  in  the  case  of  an  estate  from  year  to 
year,  the  landlord  cannot  enter  until  the  year  closes.  It  was  held 
by  the  court  of  appeals,  in  Livingston  v.  Tanner,  (4  Kern.  67,)  that 
the  purpose  and  design  of  the  various  provisions  of  the  revised  stat- 
utes, (1  B.  S.  745,  §§  7  to  9,)  were  to  regulate  and  protect  the  rights 


96  ESTATE  FROM  YEAR  TO  YEAR. 

of  tenants  at  will  and  at  sufferance,  however  created,  by  a  definite 
and  uniform  rule,  applying  alike  to  each  class  of  tenants  specified ; 
and  to  prescribe  the  conditions  upon  which  the  landlord  should  ex- 
ercise his  right  of  re-entry,  and  the  prerequisites  to  his  bringing  an 
action  of  ejectment,  or  instituting  proceedings  to  recover  possession 
of  the  lands  thus  held.  The  statute  applies  to  all  cases  where  the 
tenancy  at  will  or  sufferance  exists  in  law,  however  created.  The 
court  thought  that  although  the  language  of  the  statute  was^^er- 
missive,  it  was  obviously  intended  by  the  legislature  to  impose  a 
positive  and  absolute  duty  upon  the  landlord  of  giving  notice,  before 
the  tenancy  should  be  determined. 

The  learned  judge  who  delivered  the  judgment  in  that  case, 
thought  that  since  the  statute,  the  landlord  could  in  no  case,  when 
a  tenancy  at  will  or  at  sufferance  exists,  either  re-enter  or  bring 
ejectment  until  the  expiration  of  one  month  from  the  service  of  the 
notice.  {Id.  67.)  This  is  giving  to  the  tenant  an  advantage  not 
enjoyed  by  him  at  common  law.  Originally  neither  a  tenant  at  will 
or  a  tenant  at  sufferance  was  entitled  to  notice  to  quit.  (JacJcson 
V.  McLeod,  12  John.  182.     Jackson  v.  Bradt,  2  Caines,  169.) 

The  statute  above  referred  to,  does  not  name  tenants  from  year  to 
year.  The  estate  of  the  latter  is  different  from  that  of  an  estate  at 
will.  Though  in  ejectment  under  the  former  practice  such  tenant 
was  entitled  to  six  months'  notice,  yet  in  the  summary  proceedings 
to  remove  the  tenant  under  the  act  of  April  23,  1820,  (43  Sess.  ch. 
194,  p.  176  ;  1  B.  S.  745  ;  3  id.  35,  5th  ed.,)  a  notice  to  the  tenant 
was  only  required  in  the  case  of  a  tenancy  at  will  or  sufferance,  orig- 
inally of  three  months,  but  reduced  to  one  month  by  the  revised 
statutes,  and  no  notice  was  required  in  the  case  of  a  tenancy  from 
year  to  year.  (Nichols  v.  Williams,  8  Coiuen,  13.  Rowan  v.  Lyt- 
tle,  11  Wend.  616.  Post  v.  Post,  14  Barh.  253.  Livingston  v. 
Tanner,  12  id.  481  ;  S.  C.  on  appeal,  4  Kern.  64.  Contra,  Prouty 
V.  Prouty,  5  Eoiv  81.) 

Except  for  the  purpose  of  a  notice  to  quit,  to  enable  the  party  to 
bring  an  action,  the  estate  at  will  retains  its  true  character.  It  is 
sometimes  held  an  estate  from  year  to  year  for  the  purpose  of  a  no- 
tice to  quit.  (Bradly  v.  Covill,  4  Coiven,  350.  Nichols  v.  Will- 
iams, 8  id.  15.)  The  notice  required  preparatory  to  an  ejectment 
was  a  notice  of  six  months,  which  must  terminate  at  the  end  of  the 
year.  A  party  who  comes  in  under  such  tenant  stands  in  the  same 
relation  to  the  landlord.     (JacJcson  v.  Salmon,  4  Wend.  324.) 


ESTATE  AT  SUFFERANCE.  97 

In  case  a  tenant  for  a  year  or  more  holds  over  after  the  end  of  his 
term,  without  any  new  agreement  with  his  landlord,  he  may  he 
treated,  at  the  election  of  his  landlord,  as  a  trespasser  or  as  a  tenant 
from  year  to  year,  and  holding  in  all  other  respects  upon  the  terms 
of  the  original  lease.  Distraining  for  the  rent,  by  the  landlord, 
while  that  remedy  existed,  was  held  to  be  an  unequivocal  affirma- 
tion of  the  tenancy.  The  tenant  has  no  such  election  ;  and  if  he 
holds  over,  though  for  a  very  short  period,  without  any  unequivocal 
act  at  the  time,  to'give  his  holding  the  character  of  a  trespass,  he 
cannot  deny  that  he  is  in  as  tenant,  if  the  landlord  elects  to  treat 
him  as  such  ;  and  the  fact  that  before  his  terra  ended,  he  refused  to 
keep  the  premises  another  year,  even  at  a  reduced  rent,  does  not  re- 
but the  presumption  of  his  holding  over  as  tenant.  (Conioay  v. 
Starhweather,  1  Denio,  113.) 

The  termination  of  an  estate  from  year  to  year  is  at  the  period 
when  the  year  expires  from  the  first  commencement  of  the  term.  In 
the  rural  districts  this  is  of  but  little  consequence,  though  it  may 
lead  to  a  want  of  uniformity  in  the  termination  of  this  class  of  es- 
tates. But  it  would  be  attended  with  some  inconvenience  in  a  large 
commercial  city.  It  has  been  guarded  against  in  the  city  of  New 
York  by  the  revised  statutes.  Thus,  it  is  enacted  that  agreements 
for  the  occupation  of  lands  or, tenements  in  the  city  of  New  York, 
which  shall  not  particularly  specify  the  duration  of  such  occupation, 
shall  be  deemed  valid  until  the  first  day  of  May  next  after  the  pos- 
session under  such  agreement  shall  commence,  and  the  rent  under 
such  agreement  shall  be  payable  at  the  usual  quarter  days  for  the 
payment  of  rent  in  the  said  city,  unless  otherwise  expressed  in  the 
agreement.     (1  li.  S.  744,  §  1.) 

Section  III. 

0/  estates  at  sufferance,  and  herein  of  the  action  for  use  and  occu- 

2mtion. 

The  estate  at  sufferance  is  of  unfrequent  occurrence.  It  was  thus 
described  by  Lord  Coke.  (1  Inst.  57  h.)  Tenant  at  sufferance  is 
he  that  at  the  first  came  in  by  lawful  demise,  and  after  his  estate 
ended  continues  in  possession  ;  and  wrongfully  holdeth  over.  The 
primary  diversity  between  a  tenancy  at  will  and  a  tenancy  by  suffer- 
ance is  that  the  former  is  always  by  right,  and  the  latter,  though 
the  entry  may  be  by  right,  the  holding  over  is  by  wrong.     (Id.) 


98  ESTATE  AT  SUFFERANCR 

Whoro  the  U'nant  ]mr  auter  vie  continues  in  possession  after  the 
decease  of  cestui  que  vie,  or  a  tenant  for  years  holds  over  after  the 
ex])iration  of  his  term  :  in  hoth  these  cases  the  orifrinal  entry  was 
hiNvtul  :  but  the  suhstMiui-nt  h«»Ming  over  unlawful,  thus  crfatiii*;  an 
estate  at  sutferance.  The  original  entry  was  by  the  act  of  th»<  jiarty 
and  not  bv  the  act  of  the  law.  Such  tenant  was  oris^inally  held  as 
a  mtre  niiktd  j)08se8sor,  standing  in  no  privity  to  the  landlord,  and 
not  entitled  to  notice  to  quit.  {Jackson  v.  Farkhvrst,  5  John.  128. 
Same  v.  McLcod,  12  id.  182.)  It  is  to  estates  of  this  d.-scrii.tion 
that  the  statute  referred  to  in  the  preceding  section  (1  li.  S.  745, 
§  7.)  f"»p^"^^'^*^^l^'  »M'1*^'*'*>  "^  was  expounded  by  the  court  of  appeals 
m  Livingston  v.  2\tnner,  (4  Kernan,  67.)  Though  general  in  its 
terins,  it  should  \)C  construed  with  reference  to  its  subject  matter, 
and  other  enactments  in  the  same  chapter.  It  thus  gives  to  tho 
tenant  at  sufferance  who  has  come  in  by  act  of  the  parties,  a  right 
to  a  notice  of  one  month  to  remove  from  the  premises  before  insti- 
tuting judicial  j>roceeding8  for  his  removal.  This  abridges  the 
common  law  right  of  the  landlord  in  such  cases,  who  could  form- 
erly enter  upon  his  tenant  without  Ix'ing  treated  as  a  trespasser,  for 
such  entry. 

But  there  is  another  class  of  cases  where  the  tenant  comes  into 
possession  by  the  act  of  the  law,  and  holds  over,  in  which  cases  no 
notice  is  recpiired  to  be  given  ;  and  the  tenant  is  treated  as  a  tres- 
passer and  hable  in  that  character  to  all  the  damages  the  rightful 
owner  has  sustained.  Thus,  where  a  person  as  guardian  or  trustee 
of  an  infant,  or  a  husband  seised  in  right  of  his  wife  only,  and  every 
other  person  having  an  estate  determinable  upon  any  life  or  lives, 
who  after  the  determination  of  t^ueh  j)articular  estate,  without  the 
express  consent  of  the  juirty  immediately  entitled  after  such  deter- 
mination, holds  over  and  continues  in  possession  of  any  lands,  tene- 
ments or  hereditaments  is  required  to  be  adjudged  a  trespasser. 
And  the  party  entitled  to  such  lands,  tenements  or  hereditaments, 
upon  the  determination  of  such  particular  estate,  or  his  executors 
or  administrators,  is  allowed  to  recover  in  damages  against  every 
such  person  so  holding  over,  and  against  his,  her  or  their  executors 
or  administrators,  the  full  value  of  the  profits  received  during  such 
wrongful  possession.  (1  i?.  S.  749.  §  7.  Livingston  v.  Tanner^ 
4  Kern.  64.  Tousey  v.  Tousey,  Id.  430.)  A  person  holding  in 
such  a  case,  is  not  entitled  to  notice  to  quit,  and  is  not  within 
the  provision  of  the  revised  statutes,  requiring  one  month's  notice 


ACTION  FOR  USE  AND  OCCUPATION.  99 

in  writing  to  the  tenant.     (1  R,  S.  745,  §  7.)     He  is  treated  as  a 
trespasser.     {Livingston  v.  Tanner,  supra.) 

Where  the  i)erson  upon  whose  life  any  estate  in  lands  or  tene- 
ments shall  depend,  remains  beyond  sea,  or  absents  himself  in  this 
state  or  elsewhere,  for  seven  years  together,  the  statute  provides  that 
such  person  shall  be  accounted  as  naturally  dead,  in  any  action  con- 
cerning such  lands  or  tenements  in  which  his  death  shall  come  in 
question,  unless  sufficient  proof  be  made  in  such  case  of  the  life  of 
such  person.  {IRS.  749,  §  6.)  This  is  a  salutary  and  necessary 
provision  in  a  country  whose  population  is  so  ambulatory  as  oars. 

At  common  law  no  action  of  assumpsit  for  rent  would  lie,  ex- 
cept upon  an  express  promise  made  at  the  time  of  the  demise. 
{Synith  v.  Steivart,  6  JoJui.  48.)  This  led  to  the  statute  of  11 
George  2,  ch.  19,  §  14,  which  was  adopted  in  this  state  at  an  early 
day.  {See  act  of  1788,  1  A',  cfe  K  14G,  §  31,  and  which  is  incorpo- 
rated into  the  revised  statutes,  1  U.  S.  748,  §  2G  ;  and  as  modified 
by  other  legislation,  3  li.  S.  37,  §  20,  5th  ed.)  The  statute  applies 
only  to  cases  where  the  relation  of  landlord  and  tenant  had  subsisted 
by  some  agreement  not  under  seal.  If  therefore  a  person  enters  on 
land  under  a  contract  to  purchase,  that  relation  does  not  exist,  and 
on  his  refusing  to  perform  the  contract  he  becomes  a  trespasser,  and 
is  liable  only  in  that  character.  (6'/?i?7A  v.  Stewart,  supra.)  But 
an  action  for  use  and  occupation  lies,  when  the  holding  is  upon  an 
implied,  as  well  as  when  it  k  U])on  an  express  permission  of  the 
landlord.  {Osgood  v.  Dewey,  13  John.  240.)  If,  therefore,  the 
tenant  after  the  expiration  of  a  parol  deniiMe,  and  j)ayment  of  rent 
tinder  it,  continues  in  ])ossession  without  any  new  agreement,  he  can- 
not in  an  action  against  him  for  the  use  and  occupation  of  the  prem- 
ises subsequent  to  the  expiration  of  the  former  demise,  dispute  the 
title  of  the  landlord,  and  his  subsequent  holding  will  be  deemed  to 
have  been  with  the  implied  permission  of  the  original  lessor.  {Os- 
good V.  Dewey,  supra.)  The  same  consequence  follows  on  hold- 
ing over  after  the  exj)iration  of  a  lease  under  seal,  though  the  lease 
contains  a  covenant  for  a  renewal.     {Abeel  v.  liadcliff,  13  John.  297.) 

But  this  action  cannot  be  sustained  when  the  relation  of  landlord 
and  tenant  does  not  exist  between  the  parties.  Nor  will  it  lie  against 
a  third  person  who  has  come  in  under  a  purchase  from  the  supposed 
tenant.  {Bancroft  v.  War  dwell,  13  John.  489.)  Nor  will  it  lie 
against  a  tenant  against  whom  summary  proceedings  have  been 


100  ESTATE  UPON  CONDITION. 

forthwith  commenced  by  the  landlord,  on  the  expiration  of  the  term, 
and  the  tenant  has  been  ejected.  Such  proceedings  are  founded 
upon  the  allegation  of  the  landlord  upon  oath  that  the  holding  over 
is  without  his  assent  or  jj^rmission.  There  cannot  be,  therefore, 
in  such  a  case,  an  exjjress  or  implied  assent  to  the  holding  over,  or 
the  relation  of  landlord  aiul  tenant.  {Featherstonhauijh  v.  Brad- 
shma,  1  Wend.  134.) 

Nor  will  it  lie  wherd  there  is  an  outstanding  subsisting  lease,  un- 
less against  an  occupier  who  went  in  under  a  new  and  distinct  agree- 
ment with  the  landlord.  {Grover  v.  Wilson,  2  Barb.  264.)  Nor 
will  it  lie  when  there  has  been  no  occujiation  of  the  premises  of  any 
descri])tion,  by  or  under  the  defendant,  during  any  part  of  the  term 
for  which  they  were  leased.     (  Wood  v.  Wilcox,  1  Dcnio,  37.) 

As  the  action  for  use  and  occupation  is  founded  on  contract,  ex- 
press or  implied,  and  lies  only  wliere  the  relation  of  landlord  and 
tenant  exists,  it  cannot  be  maintained  when  the  tenant  has  not  en- 
tered into  the  possession  at  all,  under  the  lease  or  agreement,  either 
in  person  or  by  an  under  tenant  or  agent.  And  it  seems  it  can  only 
be  sustained  for  the  time  the  tenant  actually  occupied  the  premises, 
either  by  himself  or  by  his  subtenant  or  agent.  {Croswcllv.  Craine, 
7  Barb.  191.)  But  if  the  contract  remains  in  force,  the  landlord 
may  recover  thereon  though  the  tenant  has  deserted  the  premises. 
(  Westlake  v.  De  Graio,  25  Wend.  669.)  This  principle  is  question- 
ed by  Beardsley,  J.  in  Cleves  v.  WilloiKjhby,  (7  Uill,  88,)  who  seems 
to  think  that  under  the  statute  a  recovery  can  only  be  had  for  an 
actual  occupancy. 


CHAPTER  IV. 

OF    ESTATES    UPON    CONDITION. 

A  condition  is  some  quality  annexed  to  real  estate,  (of  which  we 
are  treating,)  by  virtue  of  which  it  may  be  created,  enlarged,  or  de- 
feated, upon  an  uncertain  event.     (1  Inst.  201  a.) 

It  may  be  created  by  express  words,  which  is  called  a  condition  in 
deed;  or  it  may  arise  by  implication  of  law,  which  is  called  a  condi- 
tion in  law. 

A  condition  in  deed  is  most  properly  created  by  the  very  word 
condition,  but  it  may  be  accomplished  by  other  words.     The  con- 


OF  ESTATES  UPON  CONDITION-.  101 

veyancer,  intending  to  create  an  estate  in  the  grantee,  subject  to  a 
condition,  should  insert  appropriate  words  in  the  grant.  In  Jack- 
son V.  Allen,  (3  Cowcn,  220.)  an  alley  was  granted  to  the  defendant 
in  fee,  reserving  an  annual  rent  forever  to  the  grantor  and  his  heira 
and  assigns,  excepting  a  right  of  way  over  the  alley,  and  the  estate 
was  declared  to  be  upon  this  express  condition,  that  the  grantee,  his 
heirs,  &c.  shall  and  do  at  all  times  forever  hereafter,  permit  and  suf- 
fer the  grantor,  his  heirs,  &c.  to  have,  use  and  enjoy  the  right  of 
way,  &c.  This  was  held  to  be  sufficient  to  make  the  estate  granted 
a  conditional  estate,  without  any  clause  of  re-entry,  and  to  entitle 
the  grantor  to  bring  ejectment  in  case  the  alley  was  obstructed. 
The  word  "proviso"  is  also  said  to  be  siifficient  to  create  a  condition 
in  deed.  But  the  word  must  not  depend  upon  another  sentence, 
and  must  be  the  words  of  the  grantor,  and  be  comjmlsory  to  enforce 
the  bargainer,  &c.  to  do  an  act.  [Ld.  Cromwell's  case,  2  Coke,  70, 
71.)  Conditions  are  frequently  annexed  to  the  grant  of  an  estate  in 
order  to  insure  the  payment  of  a  sum  of  money  at  a  future  day. 
Estates  by  way  of  mortgage  owe  their  origin  to  this  principle. 

An  estate  upon  condition  implied  in  law,  is  where  the  condition 
results  from  the  nature  and  constitution  of  the  grant,  without  being 
expressed  in  words.  The  most  frequent  cases  of  implied  conditions 
arise  in  the  grant  by  government  of  franchises  to  a  corporation.  It 
is  now  well  settled  that  it  is  a  tacit  condition  of  a  grant  of  incorpo- 
ration, that  the  grantees  shall  act  up  to  the  end  or  design  for  which 
they  were  incorporati^d.  [A.  &  A.  on  Corp.  742.  Tlie  People  v. 
Utica  Ins.  Co.  15  John.  382,  per  Thompson,  Ch.  J.  The  New 
York  Fireman's  Ins.  Co.  v.  Elij,  2  Cowcn,  709,  per  Savage,  Ch.  J. 
The  People  v.  Manhattan  Co.  9  Wend.  384,  per  Sutherland,  J.) 

The  mere  omission  by  a  corporation  to  exercise  its  powers  does 
not  of  itself,  disconnected  from  any  acts,  work  a  forfeiture  of  its  char- 
ter. There  must  be  something  lorong,  arising  from  willful  abuse,  or 
improper  neglect ;  something  more  than  accidental  negligence,  ex- 
cess of  power,  or  mistake  in  the  mode  of  exercising  an  acknowledged 
power.  {The  People  v.  Tlie  Kingston  die.  Turnpike  Co.  23  Wend. 
103.     Same  v.  Hillsdale  and  Chatham  T.  R.  Id.  254.) 

Nor  does  the  failure  of  the  corporation  to  perform  the  implied 
condition  of  its  existence  produce  a  dissolution,  or  a  destruction  of 
its  corporate  existence.  To  work  out  that  consequence  there  must 
be  the  judgment  of  the  appropriate  tribunal  in  a  regular  judicial 
proceeding  in  which  the  people  are  a  party.     {Id.  257.)     A  forfeit- 


102  CONDITION— LIMITATION  COVENANT. 

ure  cannot  be  iaken  advantage  of  or  enforced  against  a  corporation 
collaterally  or  incidentally,  or  in  any  other  mode  than  by  a  direct 
proceeding  for  that  jiurpose  against  the  corporation,  so  that  it  may 
have  an  opportnnity  to  answer.  And  the  government  creating  the 
corporation  can  alone  institute  the  proceeding.  {A.  d:  A.  on  Corp. 
746,  747.  Bank  of  Niarjara  v.  Johnson,  9  Wvyid.  645.  The  Peo- 
ple V.  Manhattan  Co.  9  id.  351.  Nicoll  v.  The  N.  Y.  and  Erie 
R.  R.  2  Kernan,  121.) 

It  was  on  this  principle  of  implied  conditions  that  the  doctrine 
of  forfeiture  was  extended  to  tenants  for  life  and  others,  for  acts  done 
by  them  inconsistent  with  the  nature  of  their  estate.  The  doctrine 
itself  was  of  feudal  origin,  and  has  been  subverted  in  this  state  by 
the  revised  statutes.  (1  R.  S.  739,  §  145.)  The  rights  of  all  i)ar- 
ties  are  sufficiently  protected,  when  the  tenant  assumes  to  convey  a 
larger  estate  than  he  has,  by  making  the  conveyance  effectual  to 
transfer  to  the  grantee  whatever  is  expressed  in  the  grant,  to  the 
extent  of  the  tenant's  interest  in  the  subject  matter,  and  void  for  the 
excess. 

There  is  s  distinction  between  a  condition  and  a  limitation.  A 
limitation  is  when  the  duration  of  the  estate  is  prescribed  in  the 
grant ;  as  where  land  is  granted  to  a  man  so  long  as  he  remains  in 
a  particular  place,  or  while  he  remains  unmarried,  and  the  like.  In 
such  cases  the  estate  determines  when  the  contingency  happens. 
{Mary  Partington's  case,  10  Co.  41  a.)  Coke,  in  the  case  last  cited, 
(at  pages  41  and  42,)  gives  the  words  usually  employed  in  creating  a 
limitation,  viz.  quamdiu,  dum  modo,dum,qitosqne,  durante;  and  for 
creating  a  condition,  viz.  sub  conditione,  ita  quod,  si  contingat,p)'i'0- 
viso,  &c. 

There  is  also  a  material  difference  between  a  condition  and  a 
covenant,  notwithstanding  they  are  both  frequently  created  by  the 
same  form  of  words.  The  distinction  between  them  is  illustrated  by 
the  case  put  by  Coke,  (1  Inst.  203  h.)  When  the  proviso  comes 
alone  it  is  a  condition  ;  but  he  says  if  a  man  by  indenture  lets  lands 
for  years,  "  provided  always  and  it  is  covenanted  and  agreed  between 
the  said  parties,  that  the  lessee  should  not  alien  ;"  this  is  a  condi- 
tion by  force  of  the  proviso,  and  a  covenant  by  force  of  the  other 
words.  In  case  the  condition  is  broken,  the  grantor  may  elect  to 
which  he  will  resort,  for  he  cannot  have  both,  as  they  are  incompat- 
ible remedies.     In  Nicoll  v.  The  Neio  York  and  Erie  Rail  Road 


CONDITIONS  WHEN  VOID.  103 

Co.  {supra,)  Gardiner,  speaking  of  the  distinction  between  a  limit- 
ation and  a  condition,  says,  the  first  determines  the  estate  when  the 
period  of  limitation  arrives,  without  entry  or  claim  ;  the  last  does 
not  defeat  the  estate  until  entry  by  the  grantor  or  his  heirs,  and 
upon  entry  the  grantor  is  in  as  of  his  former  estate. 

Conditions  can  only  be  reserved  to  the  grantor  or  lessor,  or  their 
heirs,  but  not  to  a  stranger.  (1  Inst  214.)  They  must  be  created 
and  annexed  to  the  estate  at  the  time  of  the  making  of  the  deed. 
{Jackson  V.  Topping,  1  Wend.  388.  2  Cruise's  Dig.  tit.  Condition, 
§  15.     Spalding  v.  Halhnheck,  30  Barb.  292.) 

Conditions  are  sometimes  void  in  their  creation.  This  is  the  case 
when  they  are— 1,  impossible;  or  2,  require  the  performance  of 
what  is  contrary  to  the  divine  or  municipal  law ;  or  3,  repugnant 
to  the  nature  of  the  estate. 

^  In  the  case  of  impossible  conditions,  if  they  be  precedent  condi- 
tions and  an  estate  be  gi-anted  to  take  efiect  on  their  performance,  it 
is  quite  clear  that  no  estate  can  arise.  A  feoffment  to  A.  upon  con- 
dition that  he  goes  to  Kome  on  a  day,  is  absolute,  for  the  condition 
is  repugnant  to  the  feoffment.     {Bac.  Abr.  tit.  Condition.) 

Conditions  which  require  the  performance  of  what  is  contrary  to 
the  divine  or  municipal  law,  whether  the  thing  be  rtialum  in  se  or 
malum  prohibitum,  or  which  require  the  party  to  omit  something 
that  is  a  duty,  or  to  encourage  such  crimes  or  omissions,  will  al- 
ways be  defeated  by  the  law.  Questions  of  this  kind  more  frequently 
arise  upon  bonds  than  upon  deeds  or  leases ;  but  the  principle  is  the 
same  in  all  cases. 

Conditions  repugnant  to  the  estate  to  which  they  are  annexed,  are 
void  in  their  creation.     Thus  a  condition  ui)on  a  feoffment  in  fee 
that  the  feoffee  should  not  alien,  is  void  because  it  is  repugnant  to 
■the  estate  granted.     In  like  manner,  on  a  grant  of  a  fee  that  the 
wife  of  the  grantee  should  not  be  endowed,  or  the  husband  be  tenant 
by  the  curtesy,  is  void  for  the  like  reason.    (6  Co.  41  a.)    Restraints 
upon  alienation  can,  at  common  law,  only  be  imposed  by  persons 
having  at  least  a  reversion,  or  a  possibility  of  reversion  therein.    As 
a  consequence  of  this  doctrine,  the  court  of  appeals  of  New  York 
held  that  where  lands  were  leased  in  fee,  the  grantor  could  not  annex 
a  condition  in  restraint  of  the  right  of  alienation  by  the  lessee 
{Dc  Peyster  v.  Michael,  2  Selden,  467.)     This  was  one  of  the  cases 
in  which  the  reservation  of  quarter  sales  and  the  condition  and 
right  of  re-entry,  upon  default  of  their  payment,  were  held  to  be  void, 


104  COURTS  LEAN  AGAINST  FORFKITURES. 

iiml  the  grouml  of  tluir  invalidity  was  stated  to  be  their  reptij^anoe 
to  tlio  cstatt?  «;rantKl — viz.  an  t-Htato  in  tW*  simphv  It  wan  coik  •  Id 
that  in  estates  tor  lite  or  years,  conditii'rt'*  in  nstraint  of  ulit-imti.  u 
were  lawful.*^ 

The  courts  lean  against  forft-itures.  In  Jackson  v.  Harrison,  (17 
John.  GG,)  the  h'ase  contained  the  x^ondition  that  if  the  lessee,  his 
executors,  &c.  should  assign  over,  or  otherwise  part  with,  the  lease 
or  the  premises  demised,  or  any  jmrt  thereof,  without  the  consent  in 
writing  of  the  lessor,  cVc.  it  shouhl  1h»  lawful  for  the  lessor,  A'c.  to  re- 
enter, and  it  contained  u  further  clause  of  forfeiture  at  the  election 
of  the  lessor,  on  the  lessee's  violating  that  and  other  covenants.  Tho 
lease  was  for  the  term  t)f  seven  years.  The  lessee  underlet  a  j)art 
cff  the  j)reniise8  for  a  portion  of  the  time  the  lease  had  to  run,  and 
this  WHS  claimed  by  the  landlord  to  be  a  cause  of  forfeiture  of  the 
whole  lease.  But  the  court  held  tliat  no  forfeiture  was  incurred  by 
fucli  underletting,  as  no  assignment  or  parting  with  any  portion  of 
the  jiremises  for  a  less  j)eriod  than  the  wliole  ttnn  would  work  a  for- 
feiture of  the  estate. 

So  in  the  case  of  a  lease  for  lives,  with  a  condition  that  the  lesstns 
should  not  sell  or  dispose  of,  or  assign  their  estate  in  the  demised 
premiseH,  without  the  permission  in  writing  of  the  lessor  or  his  heirs, 
and  if  they  did  the  estate  should  be  void,  it  was  held  that  a  lease  by 
the  lessees  of  a  part  of  the  premises  for  twenty  years  was  no  breach 
of  the  condition.  {Jackson  v.  Sih'crnail,  15  John.  278.  Same  v. 
Brownson,  7  id.  i^27.) 

The  alienation  of  the  tenant  to  work  a  forfeiture  must  in  general 
be  the  voluntary  act  of  the  tenant.  Where  in  a  lease  of  twenty-ono 
years  the  landlord  reserved  a  right  of  pre-em])tion  and  the  quarter 
sales,  which  were  protected  by  a  condition  and  forfeiture  of  the  es- 
tate in  case  the  tenant  failed  to  jjcrform  the  covenants  on  his  }>art,- 
it  was  held  that  a  sale  of  the  j)remise8  under  a  judgment  coni'essed 
by  the  tenant  was  no  forfeiture  of  the  lease,  unless  the  judgment  was 
fraudulently  confessed,  with  a  view  to  defeat  the  lessor's  reservation. 
(Jackson  v.  Corlcss,  7  John.  531.     Doe  v.  Cai-ter,  8  Tervi  Jicj).  57, 

♦The  word  lease,  in  the  English  books,  is  always  for  a  less  time  than  the  lessor  hath 
in  the  premises.  (2  Bl.  Co»i.317.)  In  this  state  grants  in  fee  reserving  rent  have  long 
been  and  are  recognized  by  our  statutes.  They  are  usually  denominated  durable 
leases.  We  have  in  this,  as  in  some  other  instances,  given  an  enlarged  meaning  to  a 
term  well  known  to  the  common  law.  I  have  generally  spoken  of  these  conveyances 
aa  leases. 


CONDITION,  PRECEDENT  AND  SUBSEQUENT.  105 

300.     Jackson   v.   Kij>p,   3  Wend.  230.     Same  v.   SUvernail,  15 
John.  278.) 

But  while  the  case  of  a  landlord  seeking  to  enforce  a  forfeiture 
against  his  tenant  is  strict i  Juris,  the  tenant  cannot  avoid  the  effect 
of  his  own  contract  by  fraud.  If,  therefore,  he  colludes  v;ith  a  stran- 
ger, desirous  of  obtaining  possession  of  the  lease,  and  confesses  a 
judgment  for  the  express  j)urpose  of  enabling  him  to  sell  the  prem- 
ises through  the  medium  of  an  execution,  the  purchaser  with  notice 
cannot  retain  the  property  against  the  landlord.  {Doe  v.  Carter^ 
8  T.  It.  300.) 

Conditions  are  also  precedent  or  subsequent.  A  condition  prece- 
dent must  be  performed  before  the  estate 'can  vest.  A  condition 
subsequent  does  not  prevent  the  vesting  of  an  estate,  but  may  en- 
large or  defeat  it  after  it  has  been  created.     {Litt.  §  325.) 

No  precise  technical  words  are  required  in  a  deed  to  make  a  stip- 
ulation a  condition  juecedent  or  subsequent ;  neither  does  it  depend 
on  the  circumstance  whether  the  clause  is  placed  j)rior  or  posterior 
in  the  deed,  so  that  it  oj)erates  as  a  provi.so  or  a  covenant  ;  for  the 
same  words  have  been  construed  to  operate  as  either  the  one  or  the 
other,  according  to  the  nature  of  the  transaction,  and  tiie  intention 
of  the  parties.  {Per  Paiije,  J.  in  rarmdee  v.  The  Oswego  and 
Syracuse  It.  li.  Co.,  2  Seld.  80.)  The  precedency  of  the  conditions 
must  depend  on  the  order  of  time  in  which  the  intent  of  the  trans- 
action requires  their  performance.  The  rules  for  finding  the  intent 
of  the  parties  are  the  same  as  those  in  regard  to  covenants.  {Id. 
Nicoll  V.  N.  Y.  and  Erie  li.  It.  Co.  2  Kernan,  121.) 

There  is,  at  common  law,  a  difference  in  the  effect  between  the 
breach  of  a  condition  annexed  to  an  estate  of  freehold,  and  the  like 
breach  of  a  condition  in  an  estate  for  years.  As  a  freehold  estate 
could  not  l>e  created  without  livery,  so  it  could  not  be  defeated 
■without  entry.  But  where  a  condition  annexed  to  an  estate  for 
years  is  broken,  the  estate  ipso  facto  ceases  as  soon  as  the  condition 
is  broken,  without  an  entry  ;  except  where  the  lease  provides  ex- 
pressly, that  the  landlord  shall  re-enter  in  case  of  a  breach  of  the 
condition.  In  the  first  case  the  lease  is  absolutely  void  on  the  breach 
of  the  condition ;  and  in  the  last,  voidable  only  at  the  election  of 
the  landlord.     {Stuyvesant  v.  Davis,  9  Paige,  431.) 

Conditions  subsequent  are  not  favored  in  the  law  and  are  con- 
strued strictly,  because  they  tend  to  destroy  estates.  They  can  only 
be  .reserved  for  the  benefit  of  the  grantor  or  his  heirs^  and  no  others 


100  CONDITION  SUBSEQUENT. 

can  take  atlvantaj;e  of  a  breach  of  them.  A  mere  faihire  to  perform 
a  condition  subsequent  does  not  devest  the  estate.  The  <^rnntor  or 
his  heirs  may  not  choose  to  take  advantage  of  the  breach,  and  until 
they  do  so,  by  entry,  or  what  is  now  made  by  statute  itsecjuivahnt, 
there  is  no  forfeiture  of  the  estate.  This  was  the  common  hiw,  and 
it  has  not  been  altt-red  by  statute  so  as  to  pjive  a  ri<,'ht  (if  entry  t«>  an 
assi<;nee  in  any  instance  not  coui)led  witli  a  reversionary  interest  as 
in  the  cases  of  estates  for  years  and  for  life,  e.xcept  in  cases  of  leases, 
or  rather  {grants  in  fee  reservin<^  rent.  (Per  J^irker,  J.  In  NicoH  v. 
The  Niio  York  and  Eric  Hail  lioad  Co.  2  Kern.  131.  1  R.  S. 
748,  §§  23,  24,  25.) 

These  principles  were  applied  by  the  court  of  appeals  in  the  last 
cited  case,  where,  by  a  conveyance  to  a  rail  road  corporation,  land 
was  ''ranted  uj)i>n  the  condition  that  it  should  construct  its  road 
thereon  within  a  limited  time.  The  company  having  failed  to  per- 
form, it  was  held  that  such  failure  did  not  devest  the  title  ;  that 
the  condition  was  subsequent  ;  that  the  title  vested  in  the  corpora- 
tion in  fee  on  the  execution  of  the  deed,  and  could  not  be  devested 
but  by  entry,  or  what  is  made  equivalent  to  it  by  the  statute,  by 
the  grantor  or  his  heirs  for  breach  of  the  condition  to  ]>erfect  the 
estate.  This  ri^ht  of  entry,  it  was  said,  is  not  a  reversion,  or  an 
estate  in  land,  and  will  not  pass  by  assignment  or  conveyance  of  the 
premises  held  subject  to  the  condition.  {NicoU  v.  The  N.  Y.  and 
Erie  li.  II  Co.  2  Kernan,  121.) 

The  principle  that  failing  to  perform  a  condition  subsequent  does 
not  x>^^'  se  devest  an  estate,  or  perfect  a  right,  was  recognized  by 
the  supreme  court  of  the  United  States  in  the  claims  growing  out 
of  the  acquisition  of  California.  This  was  one  of  the  questions  in 
Fremont's  case.  {Fremont  v.  United  States,  17  Hoiv.  542.)  And 
the  same  j)rincii)le  was  applied  in  various  other  cases.  {United 
States  V.  Heading,  18  id.  1.) 

With  regard  to  the  performance  of  conditions,  and  what,  if  any 
thing,  will  excuse  from  performance,  there  is  a  manifest  diversity  be- 
tween conditions  precedent  and  conditions  subsequent.  A  prece- 
dent condition  must  be  peiformed  before  the  estate  will  vest.  Even 
though  the  performance  of  it  becomes  impossible  by  the  act  of  God, 
no  estate  can  vest.  (  Vanhorne  v.  Dorrance,  2  Dall.  317.  19  John. 
71,  72,  per  Spencer,  Ch.  J.  Taylor  v.  Bullen,  6  Coiven,  627,  p>er 
Savage,  Oh.  J.)  * 


LICENSE  IN  DISCHARGE  OF  CONDITION.  107 

AVith  respect  to  conditions  subsequent  a  less  rigorous  rule  pre- 
vails. If  such  condition  be  impossible  at  the  time  it  was  made,  or 
becomes  so  afterwards,  or  it  be  defeated  by  the  other  party,  the  es- 
tate is  absolute.     (1  Inst.  206  a,  208  h.) 

If  it  becomes  impossible  by.  the  act  of  the  grantor,  the  grant  be- 
comes single.  {Tlie  United  States  v.  Arredondo,  6  Peters,  745,  jjtr 
Marshall,  Cli.  J.      Whitney  v.  Spencer,  4  Cowen,  39.) 

If  tliere  be  a  condition  in  a  lease  against  the  right  of  the  leasee  or 
his  assigns  to  alien  during  the  term,  without  the  consent  in  writing 
of  the  lessor,  it  has  been  held  that  a  license  by  the  lessor  to  the  les- 
see to  alien,  operated  not  merely  as  a  dispensation  in  respect  to  such 
lessee,  but  determined  the  whole  condition.  {Dumpor's  case,  4  Coke, 
119  Z/.)  Though  this  case  has  sometimes  been  spoken  ot  in  terms 
of  disfavor,  it  has  been  uniformly  followed,  and  is  still  the  law. 
{Brummell  v' 3Iacp?ierson,  14  Ves.  173,  175.  Lakin  v.  Williams, 
17  Wend.  457.)  The  reasons  given  for  it,  as  abridged  by  the  chan- 
cellor in  the  last  cited  case,  are  that  the  license  gave  to  the  lessee 
the  power  to  convey  an  absolute  interest,  free  from  the  restraint  of 
the  condition,  and  the  assignee  taking  that  interest,  held  absolute 
and  discharged  from  the  restraint ;  that  the  lessors  could  not  dis- 
pense with  an  alienation  at  one  time,  and  the  estate  be  subject  to 
the  condition  afterwards  ;  and  that  as  a  dispensation  of  one  aliena- 
tion it  operated  as  a  dispensation  to  all  others  ;  and  the  same  as  to 
the  persons  ;  for  if  the  lessors  dispense  with  one,  all  others  were  at 
liberty,  and  therefore  the  word  assi(/7is  being  mentioned  in  the  con- 
dition made  no  difference. 

In  order  that  the  license  or  consent  may  entirely  discharge  the 
condition  or  proviso,  it  must  be  paramount  to  the  terms  of  the  pro- 
viso ;  if  the  consent  be  required  to  be  in  writing,  a  parol  license  will 
not  be  either  a  present  or  future  dispensation  of  the  condition.  (lioe 
V.  Harrison,  2  T.  li.  425.) 

If  the  condition  be  that  the  "  lessee  or  his  executors  or  administra- 
tors shall  not  set,  let  or  assign  over  the  whole  or  part  of  the  prem- 
ises," the  condition  applies  to  them  as  well  as  to  the  lessee,  and 
therefore  on  the  death  of  the  latter,  if  his  administrator  underlets 
a  part  of  the  premises  without  a  consent  in  writing  from  the  lessor, 
he  incurs  a  forfeiture.  A  parol  license  will  not  be  sufficient.  (Id. 
Braddick  v.  TJiompson,  8  East,  346.  Blake's  case,  6  Co.  43  h. 
3  Taunton,  73.     Jackson  v.  Crysler,  I  John.  Cas.  125.) 

And  this  is  the  same  in  equity  as  well  as  at  law.     But  if  a  parol 


108  IMPLIED  CONSENT. 

license  bo  used  as  a  snare,  ami  under  circumstances  which  amount 
to  a  fraud,  erjuity  will  j^rant  relief.  {Richardson  v.  Evana,  3  Madd, 
It.  218.)  And  no  man  can  take  advanta«,'e  of  a  condition,  who  has 
himself  prevented  or  disjxnsed  witli  its  performance.  {Williams  \. 
The  Dank  of  the  United  States,  2  Peters,  102,  per  Washington,  J.) 

Independently  of  an  express  consent  in  writing,  according  to  the 
terms  of  the  condition,  there  are  other  acts  of  the  lessor  or  his 
ht'irs,  which  operate  as  a  waiver  of  tlie  forfeiture  after  a  breach  has 
been  incurred.  This  may  be  done  by  the  acceptance  of  rent  which 
accrued  after  the  forfeiture,  witli  a  knowledge  on  the  part  of  the 
landlord  that  the  condition  had  U'en  previously  broken.  {lioe  v. 
Harrison,  supra.  Jacksun  v.  Allen,  3  Cowen,  230.  Doe  v.  liltsBf 
4  Taunton,  735.  Due  v.  Banks,  4  li.  d-  A.  401.)  It  j)roceeds  upon 
the  princij)le  that  the  lessor  by  receiving  the  rent,  assumes  tlie  lease 
to  have  continuance,  as  Lord  Coke  expresses  it.  {Co.  Litt.  211  h.) 
So  also  if  the  landlord  brings  an  action,  to  recover  the  rent,  and 
while  distresses  were  lawful,  if  he  distraini*vl  for  tlie  rent,  he  could 
not  enter  fi)r  the  condition  broken  prior  to  the  accruing  of  that 
rent.  He  may,  however,  receive  the  rent  due  before  the  forfeiture, 
and  if  it  be  received  after  the  forfeiture  it  is  no  waiver  of  it.  But 
receiving  rent  which  accrued  after  the  forfeiture,  with  a  knowledge 
thereof,  is  a  waiver  of  it.  {Jackson  v.  Allen,  supra,  and  the  other 
cases  there  cited.) 

If  the  forfeiture  be  once  waived,  it  cannot  afterwards  be  claimed. 
{Chalkcr  v.  Chalker,  1  Conn.  79.) 

With  regard  to  the  mode  of  the  landlord's  taking  advantage  of  a 
breach  of  a  condition  sulisequent,  the  former  rule  required  that  the 
landlord  must  enter  if  he  could  ;  if  he  could  not  enter  he  was  re- 
quired to  make  claim  ;  for  a  freehold,  whether  it  lie  in  grant  or  livery, 
could  not  cease  by  condition,  without  entry  or  claim.  {Co.  Litt.  218.) 
But  in  this  state  it  was  held,  at  an  early  day,  that  an  actual  entry 
in  an  action  of  ejectment  was  not  necessary  in  any  case,  except  to 
avoid  a  fine.  {Jackson  v.  Cryshr,  1  John.  Cas.  125,  decided  in 
1799.)  Fines  and  recoveries  have  since  been  abolished,  (2  R.  S. 
343,  §  24 ;)  and  the  civil  action  provided  by  the  code  of  procedure 
has  become  the  substitute  for  the  action  of  ejectment.  There  does 
not  seem  to  be  any  case  in  which  an  actual  entrj''  according  to  the 
ancient  sense  of  that  term,  is  now  necessary.  The  bringing  of  an 
action,  with  or  without  previous  demand,  or  notice,  as  the  case  may 


MORTGAGES.  109 

require,  is  a  sufficient  assertion  of  the  landlord's  intention  to  enforce 
his  right  for  the  condition  broken. 

The  consequence  of  a  recovery  for  a  condition  broken  is  to  reinvest 
the  grantor  or  lessor  with  his  former  estate  as  he  enjoyed  it  before. 
He  thus  avoids  all  mesne  charges  and  incumbrances  imposed  upon 
the  estate  by  the  tenant  or  those  claiming  under  him.     (1  Inst.  202  a.) 

There  are  some  acts,  it  is  said,  which  may  excuse  the  non-performance 
of  a  condition  subsequent.  If  it  was  possible  at  the  time  of  mak- 
ing it,  and  it  becomes  impossible  by  the  act  of  God  afterwards,  the 
performance  is  excused  and  the  estate  remains  unaffected  by  it. 
{Merrill  v.  Emery,  10  Pich  507.)  In  The  People  v.  Manning^ 
(8  Coiuen,  297,)  the  princii)le  was  applied  to  recognizance,  the  per- 
formance of  the  condition  of  which  had  become  impossible  by  the 
sickness  and  death  of  the  cognizor.     (Co.  Lift.  206  a.) 

In  like  manner,  if  it  becomes  impossible  by  the  act  of  the  law  or 
of  the  other  party,  performance  of  it  is  excused.     {Same  cases.) 


CHAPTER  V. 

OF   THE   LAW   OF   MORTGAGES. 

Section  I. 

0/  the  nature  of  Mortgages. 

A  mortgage  may  be  well  described  to  be  a  conveyance  of  lands 
by  a  debtor  to  his  creditor,  as  a  security  ibr  the  repayment  of  a 
sum  of  money ;  with  a  proviso  that  such  conveyance  shall  be  void 
on  payment  of  the  money  secured  by  it,  with  interest,  on  a  day 
therein  expressed.  In  this  state  the  most  usual  form  of  a  mort- 
gage is  a  conveyance  in  fee  of  the  lands  intended  to  be  charged  with 
the  debt  or  obligation  of  the  debtor,  who  is  called  the  mortgagor, 
to  the  creditor,  who  is  called  the  mortgagee,  with  a  proviso  or  con- 
dition that  the  estate  shall  be  void  on  the  payment  of  the  sum  of 
money  therein  expressed  with  interest,  or  doing  some  other  act  accord- 
ing to  the  terms  of  a  bond  or  other  instrument  executed  by  the  mort- 
gagor  to  the  mortgagee  and  therein  described.  {Cooper  v.  Whitney, 
3  Hill,  95.  Baker  v.  Thrasher,  4  Denio,  495.)  It  usually  con- 
tains a  power  authorizing  the  mortgagee,  his  executors,  administra- 
tors or  assigns,  in  case  of  any  default  in  paying  the  money  secured 


110  MORTGAGE. 

by  it,  or  of  any  part  tlu'reof,  to  siU  tlie  preruiseB  described,  with 
their  appurtenances,  in  the  manner  ])reseribed  by  hiw,  and  out  of 
the  money  arising'  on  such  Htile,  to  retain  tlie  ])rincipal,  interest  and 
costs,  and  to  render  the  overplus  to  the  mortgagor,  his  hi-irs  or 
assigns. 

The  power  of  sale,  when  given  in  a  mortgage,  or  other  conveyance 
intended  to  secure  the  payment  of  money,  is  deemed  a  part  of  Uie 
security,  and  vests  in,  and  may  be  executed  by  any  person  who,  by, 
assignment  or  otherwise,  becomes  entitled  to  the  money  so  secured 
to  be  paid.     (1  B.  S.  737,  §  133.) 

A  mortgage  may  be  made  either  of  an  estate  in  fee  or  for  years. 
In  this  state  it  is  usually  granted  in  fee.  If,  however,  the  mortga- 
gor has  only  a  less  estate,  as  an  estate  for  life,  the  mortgage  will  be 
effectual  for  the  life  of  the  mortgagor,  though  void  for  the  excess. 
{Si)iclmr  V.  Jackson,  8  Cowcn,  543.     1  li.  S.  739,  §  143.) 

It  is  also  enacted  that  no  mortgage  shall  be  construed  as  imphjiny 
a  covenant  iox  the  payment  of  the  sum  intended  to  be  secured.  {Id. 
738,.  §  139.) 

Hence  it  follows,  that  if  there  be  no  express  covenant  in  the  mort- 
gage, and  no  bond  or  other  instrument  to  secure  such  payment  shall 
have  been  given,  the  remedies  of  the  mortgagee  are  confined  to  the 
lands  mentioned  in  the  mortgage.     (Id) 

Nor  is  it  material  in  wluit  form  the  agreement  is  expressed. 
Where  the  mortgagor  acknoivlcd'jed  his  i7idchtedness  to  another  in 
a  certain  6W>«,  and  declared  that  for  the  purj^ose  of  securing  the 
payment  thereof,  he  transferred  the  property  mentioned,  it  was  held 
that  the  creditor,  on  default  of  payment,  was  not  bound  to  resort, 
in  the  first  instance,  to  the  proi)erty,  but  might  bring  an  action  for 
the  sum  acknowledged  to  be  due.  Such  language  was  held  equiva- 
lent to  an  express  covenant.     {Elder  v.  Bouse,  15  Wend.  218.) 

It  is  not  essential  to  a  mortgage  that  it  should  contain  a  covenant 
to  pay  money,  or  to  do  any  other  act,  or  that  it  should  embrace  ia 
it  a  powetof  sale.  A  deed  in  fee,  with  a  condition  annexed  that  if 
the  grantor  should  pay  certain  legacies  charged  upon  the  lands,  sold^ 
and  conveyed  by  the  grantor  to  the  grantee,  then  the  deed  to  be 
void,  was  held  to  be  a  mortgage.  {Steioard  v.^  Hutchins,  13  Wend. 
485  ;  affirmed  6  EiU,  143.) 

In  such  a  case,  under  the  statute  of  New  York,  the  mortgagee  has 
no  remedy  by  ejectment  in  a  court  of  law,  but  is  confined  to  his  rem- 
edy in  equity.     (2  B.  S.  312,  §  57.)     Indeed,  the  statute  has  w^isely 


MORTGAGES.  HI 

taken  away  the  remedy  by  ejectment  from  the  mortgagor  or  his  as- 
signs or  representatives,  in  all  cases. 

It  is  usual  to  insert  the  defeasance  in  the  same  instrument,  and 
such  is  the  most  advisable  practice.  But  it  is  not  indispensable  to 
the  validity  of  the  instrument.  Where  land  was  conveyed  abso- 
lutely, and  the  grantee,  by  a  separate  instrument  or  defeasance,  cov- 
enanted to  reconvey  to  the  grantor,  on  his  paying  a  sum  of  money, 
the  transaction  was  held  to  amount  only  to  a  mortgage.  [Peterson 
V.  Clarke,  15  John.  205.  Broivn  v.  Dean,  3  Wend.  208.  Dunham, 
V.  Da7j,  2  John.  Ch.  182.     15  John.  555.) 

There  is  a  distinction  between  a  conditional  sale  and  a  mortcase. 
If  the  debt  remains  it  is  a  mortgage  ;  but  if  it  be  extinguished  by 
mutual  agreement,  express  or  fairly  implied,  the  instrument  is  not 
a  mortgage.  (Eckford's  Ex'r  v.  De  Kay,  8  Paige,  89  ;  affirmed 
2G  Wend.  37.     Hobinson  v.  Cropsey,  2  Ed.  V.  Ch.  Rep.  138.) 

Though  conditional  sales  between  debtor  and  creditor  are  to  be 
scanned  with  jealousy,  they  may  still  be  ujjheld  if  fairly  made.  Such 
contracts  are  lawful  in  themselves,  and  it  is  only  when  an  oppressive 
use  is  made  of  the  advantage  which  a  creditor  has  over  his  debtor 
that  the  courts  are  inclined  to  treat  the  transaction  as  a  morto-ajre. 
In  one  case  where  a  creditor,  whose  debt  was  about  equal  to  the  value 
of  the  land,  received  a  conveyance  of  it  from  the  debtor  in  discharge 
of  the  debt,  and  gave  the  grantor  a  stipulation  that  if  he  would  find 
a  purchaser  in  a  year  he  should  have  all  the  purchase  money  beyond 
the  debt  and  interest,  the  transaction  Avas  held  not  to  be  a  mortgage. 
{Holmes  v.  Grant,  8  Paige,  243.     Cooper  v.  Hill,  3  Hill,  95.) 

So,  also,  in  a  later  case,  where  the  grantor  conveyed  lands  to  the 
grantee  by  an  absolute  deed,  and  the  grantee  on  the  same  day  exe- 
cuted a  covenant  to  the  grantor,  reciting  that  the  conveyance  was 
made  for  the  purpose  of  paying  a  sum  of  money  which  was  specified, 
and  covenanting  that  he  would  not  convey  the  premises  within  one 
year  without  the  assent  of  the  grantor  ;  and  if  the  grantor,  within 
that  time,  should  find  a  purchaser,  the  grantee  would  convey  to  such 
purchaser,  on  receiving  the  amount  with  interest,  for  which  the  land 
had  been  conveyed  to  him  ;  and  that  in  case  such  sale  should  not 
be  made  within  the  year,  it  should  then  be  submitted  to  certain  per- 
sons named  to  determine  what  additional  sum  the  grantee  should 
pay  for  the  land,  which  sum  the  grantee  covenanted  to  pay  ;  it  was 
held  by  the  supreme  court  that  this  transaction  did  not  amount  to  a 
mortgage.     {Baker  v.  Thrasher,  4  Denio,  493.)     The  relation  of 


112  MORTGAGEvS. 

debtor  and  creditor  did  not  exist  in  this  case,  and  the  conveyance 
was  not  made  to  secure  the  payment  of  a  ])rior  indebtedness,  but  in 
payment  of  the  debt,  {Id.  And  see  remarks  of  Branson,  J.  dis- 
a2yp7'Ovi7ig  of  Palmer  v.  GurnscT/,  7  Wend.  248.) 

The  assignment  of  a  hind  contract  fur  the  security  of  a  debt  due 
to  the  assignee,  upon  the  condition,  that  if  the  debt  was  paid  at  the 
time  stipuLated,  the  assignee  would  reassign  the  interest,  was  held 
to  be,  in  equity,  a  mortgage,  and  that  the  assignor  had  the  right  of 
redemption,     {Brochway  v.  Wells,  1  Paige,  617,) 

So  also,  in  another  case,  where  A.  assigned  the  mortgage  of  a  third 
person  to  B,  as  security  for  a  less  sum  than  the  amount  due  thereon, 
with  power  to  collect  such  sum,  covenanting  that  it  was  due,  and 
that  such  third  person  would  pay  it  by  a  certain  day,  it  was  held  to 
be  a  mortgage  only,     {Slee  v,  Manhattan  Co.  1  Paige,  48.) 

So  when  a  sealed  instrument,  executed  in  1809,  granting  land  for 
the  term  of  one  year  on  rent,  and  conditioned  to  be  void  on  payment 
of  a  certain  sum,  and  with  a  covenant  on  the  part  of  the  grantor  to 
pay  it  at  the  end  of  the  year,  it  was  held  to  be  valid  as  a  mortgage. 
IeIUoU  V,  Pell,  1  Paige,  2G3.) 

How  tar  a  deed  absolute  in  its  terms  may  be  shown  by  parol  evi- 
dence to  have  been  intended  as  a  mortgage,  has  led  to  contradictory 
decisions.  In  this  state  such  evidence  has  been  uniformly  held  ad- 
missible in^courts  of  equity.  In  Webb  v.  Rice,  (6  Hill,  219,)  revers- 
ing the  same  case  in  1  Hill,  606,  the  question  arose  in  an  action  of 
ejectment,  and  it  was  held  by  the  court  of  errors  that  such  evidence 
was  inadmissible  in  a  court  of  law  to  show  that  a  deed,  absolute  on 
its  face,  was  intended  as  a  mortgage.  Whether  such  evidence  was 
admissible  in  a  court  of  equity,  under  any  circumstances,  did  not  be- 
come a  question. 

That  decision,  so  far  as  it  could  be  construed  as  affecting  the  ad- 
missibility of  such  evidence  in  a  court  of  equity,  was  in  conflict 
with  the  uniform  course  of  the  decisions  in  this  state,  and  of  some 
elsewhere.  {Strong  v.  Trustees  of  Mitchell,  4  John.  Ch.  167.  Marks 
V.  Pell,  1  id.  594,  Clark  v,  Henry,  2  Coiven,  234,  Dey  v.  Dun- 
Tiam,  2  John.  Ch.  189.  Peterson  v.  Clark,  15  John.  205.  Gilchrist 
V.  Cunningham,  8  Wend.  641.  Yarborough  v.  Neivell,  10  Yerger, 
376.  Whitheck  v.  Kane,  1  Paige,  202.  Slee  v.  Manhattan  Com- 
pany,  1  id.  48.  Van  Buren  v.  Olmstead,  5  id.  9.  Lansing  v.  Pm- 
sell,  3  Barb.  Ch.  325.  James  v.  Johison,  6  John.  Ch.  417.  ^  Atk. 
389.     2  id.  99.     But  see  Cook  v.  Eaton,  16  Barb,  439,  contra.) 


MORTGAGES.  113 

The  case  of  Wehb  v.  Rice  was  decided  in  1843.  Since  that  time  the 
jurisdiction  in  law  and  equity  has  been  consolidated,  and  the  former 
court  of  chancery  abolished.  But  the  court  of  appeals  has  steadily 
adhered  to  the  well  settled  rule  that  a  deed  absolute  upon  its  face 
may  be  shown  by  parol  evidence  to  be  a  mortgage,  notwithstanding 
the  case  of  Webb  v.  Bice,  {supra.)  {Hodges  v.  The  Tennessee  M. 
and  T.  Ins.  Co.  4  Selden,  416.  Dobson  v.  Pearce,  2  Kernan,  156. 
Crary  v.  Goodman,  Id.  266.  Dcspard  v.  Walbridge,  1  Smith,  15 
N.  Y.  Rep.  374.  Chester  v.  Bank  of  Kingston,  2  id.  343.)  All 
these  latter  cases  arose  since  the  case  of  Webb  v.  Bice,  and  since  the 
adoption  of  the  code  of  procedure.  It  is  quite  clear  upon  authority 
in  this  state,  that  the  evidence  is  admissible,  whether  the  action  be 
such  as  was  formerly  called  an  action  at  law  or  an  equitable  action. 
There  are  a  few  other  cases  where  the  same  principle  prevails.  Thus, 
a  resulting  trust  may  be  proved  by  parol ;  {Bottsford  v.  Burr,  2 
Johyi.  409 ;  Boyd  v.  McLean,  1  id.  582 ;)  the  fact  that  a  joint 
maker  of  a  bond  or  note  was  a  surety ;  {Chester  v.  Bank  of  Kings- 
ton, supra;)  that  a  deed  or  mortgage  was  given  as  a  collateral  se- 
curity.    {Id.) 

With  regard  to  the  assignment  of  mortgages,  it  has  been  repeat- 
edly held  that  as  such  assignment  is  not  a  conveyance  of  land  within 
the  meaning  of  the  statute  of  frauds,  it  is  equally  effectual  by  a 
mere  delivery,  as  by  a  written  assignment  under  seal.  {Bunyan  v. 
Messereau,  11  John.  534.)  The  debt  is  considered  the  principal, 
and  the  land  as  a  mere  incident.  The  assignment  of  the  debt  by 
parol,  draws  the  land  after  it  as  a  consequence. 

But  the  assignee  of  a  bond  and  mortgage  takes  them  subject  to 
all  the  equities  of  the  original  mortgagor,  but  not  to  the  latent  equity 
of  a  third  person.  {Murray  v.  Livingston,  2  John.  Ch.  441.  Liv- 
ingston v.  Dean,  2  id.  479.  James  v.  Mowrey,  2  Coiu'en,  246.  Pen- 
dleton V.  Fay,  2  Paige,  202.  Evertson  v.  Evertson,  5  id.  644. 
L'Amoreaux  v.  Vandenburgh,  7  id.  316.  Evans  v.  Ellis,  5  Denio, 
640;  affirmed,  Ellis  v.  Messerole,  11  Paige,  467.) 

He  cannot  be  protected  in  equity  as  a  bona  fide  purchaser  with- 
out notice,  unless  he  has  acquired  the  legal  as  well  as  the  equitable 
title ;  and  if  he  purchased  from  a  fraudulent  holder,  he  can  be  pro- 
tected only  to  the  value  of  the  property,  or  the  amount  of  the  money 
paid  for  it.  {Peabody  v.  Fenton,  3  Barb.  Ch.  451.)  The  assignee 
of  the  assignee  of  a  mortgage  takes  only  the  title  of  his  assignor, 
whatever  it  may  be.     {Sweet  v.  Van  Wyck,  Id.  647.) 

Will.— 8 


114  LIEN  OF  VENDOR. 

The  courts  will  protect  the  rip;hts  of  a  party  who  has  made  ad- 
vances in  good  fiiith  upon  the  credit  of  a  security  to  be  assigned  to 
him.  Where  a  mortgagor  applied  to  a  third  person  for  an  advance 
of  money  to  enable  him  to  take  up  his  mortgage,  promising  to  give 
him  the  same  security  for  such  money  as  the  mortgagee  then  held, 
and  upon  receiving  the  money,  paid  it  to  the  mortgagee  and  took  an 
assignment  of  the  mortgage  from  him  to  such  third  person,  it  was 
held  that  the  mortgage  was  not  discharged,  and  that  the  assignee 
was  entitled  to  hold  the  same  as  a  security  for  the  money  thus  ad- 
vanced.    (White  V.  Knapp,  8  Paige,  173.) 

The  deposit  of  title  deeds  by  way  of  security  for  money  advanced 
gives  to  the  party  an  equitable  lien  in  the  premises  by  way  of  mort- 
gage. (Per  Sutherland,  J.,  Jackson  v.  Parkhurst,  4  Wend.  369.) 
Such  lien  cannot,  however,  be  set  up  at  law  as  a  legal  estate.  (Jack- 
son V.  Dunlap,  1  John.  Cas.  114.     Sa7ne  v.  Phipps,  12  John,  418.) 

Tlie  lien  of  the  vendor  for  the  purchase  money  is  analogous  to  an 
equitable  mortgage.  When  the  vendor  delivers  possession  of  an 
estate  to  a  purchaser,  without  receiving  the  purchase  money,  equity, 
whether  the  estate  be  or  be  not  conveyed,  and  although  there  was  no 
special  agreement  for  that  purpose,  ^gives  the  vendor  a  lien  on  the 
land  for  the  money.  (Sugden  on  Vend.  857.  Garson  v.  Giren, 
1  Joh7i.  Ch.  308.  Clark  v.  HaU,  7  Paige,  382.)  The  purchase 
money  is  prima  facie  a  lien,  and  it  lies  on  the  vendee,  or  his  heirs, 
to  show  that  the  vendee  agreed  to  rest  on  other  security.  It  is  not 
devested  by  taking  the  vendee's  negotiable  note  for  the  same. 
(Garson  v.  Green,  supra.)  Taking  the  note  of  a  third  person,  no^ 
as  security  but  as  payment  of  a  part  of  the  purchase  money,  docs 
not  affect  the  lien  for  the  residue.  (Uallock  v.  Smith,  3  Barh.  267.) 
It  exists  against  subsequent  purchasers  and  incumbrancers,  when 
they  advance  no  new  consideration,  or  have  notice.  (Id.)  It  is  su- 
perior to  the  lien  of  a  prior  judgment  against  the  vendee.  (Arnold 
V.  Patrick,  6  Paige,  310.) 

The  principles  of  equity  do  not  require  that  this  lien  for  the  pur- 
chase money  should  be  upheld  further  than  as  against  the  vendee 
and  his  heirs,  or  volunteers,  or  purchasers  with  notice  of  the  lien. 
It  should  be  defeated  by  an  alienation  to  a  bona  fide  purchaser 
without  notice.     (Bagley  v,  Greenleaf,  7  Wheaton,  46.) 

The  principle  on  which  the  doctrine  rests  is,  that  the  vendee  on 
the  sale  of  real  estate  becomes  the  trustee  of  the  vendor  for  the  pur- 
chase money,  or  of  such  portion  of  it  as  remains  unpaid,  and  the 


MORTGAGES.  1X5 

vendor  is  the  trustee  of  the  purchaser  for  the  land.  (  Watson  v.  Le 
How,  6  Barb.  484.  Swartout  v.  Bzirr,  1  ib.  495,  499.  Champion 
V.  Brown,  6  Jolm.  Ch.  402,  3.)  But  a  subsequent  purchaser  from 
the  vendor  in  possession,  advancing  a  full  consideration,  and  having 
no  notice  of  the  equitable  lien  of  the  first  vendee,  has  a  better  equity 
than  the  latter,  who  by  neglecting  to  consummate  his  purchase  by 
an  actual  change  of  possession,  has  enabled  his  vendor  to  perpetrate 
a  fraud. 

^  Formerly,  if  a  judgment  debtor  was  in  possession  of  land  at  the 
time  of  the  sale  thereof  on  an  execution  against  him,  he  was  estop- 
ped from  denying  that  he  had  any  interest  in  the  land.     The  bare 
possession  was  an  interest  which  might  be  sold  on  execution,  and  the 
purchaser  acquired  the  same  interest  which  fhe  defendant  in  the 
execution  had,  and  no  more.     If  the  latter  was  a  mere  tenant  at 
will,  or  by  sufferance,  or  even  was  in  possession  without  color  of 
right,  the  purchaser,  as  against  him  and  those  claiming  under  him, 
had  a  right  to  be  substituted  in  his  place,  so  far  as  respected  the 
possession  and  any  legal  rights  of  the  defendant  connected  there- 
with.^   {Talbor  v.  ChamberUn,  3  Paige,  220.     Jachson  v.  Graham, 
3  Caines,  188.     Same  v.  Parker,  9  Cowen,  84.     Grosvenor  v.  AUe7i, 
9  Paige,  76.     G^i^n  v.  Spe7icer,  6  Hill,  525.      Watson  v.  Le  Roio, 
6  Barb.  484.)     But  the  revised  statutes  (1  R.  8.  744,  §  4)  have  so 
far  changed  the  rule  in  this  respect,   that  the  interest  of  a  party 
holding  a  contract  for  the  purchase  of  land  cannot  be  barred  by  the 
docketing  of  a  judgment  or  decree,  nor  be  sold  by  execution  upon 
such  judgment  or  decree.     This  interest,   whatever  it  is,  can  now 
be  only  reached  by  a  bill  in  equity,  and  can  thus  be  sold  and  trans- 
ferred to  the  purchaser  upon  such  terms  as  the  court  shall  deem  most 
conducive  to  the  interest  of  the  parties.     (1  R.  S.  744,  §§  4,  5.) 
Neither  an  estate  at  will  or  by  sufferance,  or  the  interest  in  a  con- 
tract for  the  purchase  of  land,  can  be  sold  on  execution.     (1  R.  S. 
723 ;  744,  §§  4,  5.     Moyer  v.  Hinman,  17  Barb.  137.    Bigelow 
V.  Finch,  Id.  394.     Mead  v.  Gregg,  12  id.  653.) 
^  When  several  equities  affect  the  same  estate,  it  is  a  familiar  prin- 
ciple in  equity  jurisprudence,  if  they  be  otherwise  equal,  they  will 
attach  upon  the  estate  according  to  the  periods  at  which  they  com- 
menced ;  for  it  is  a  maxim  of  equity  as  well  as  of  law,  qui  prior  est 
tempore,  potior  est  Jure.     {Berry  v.  Mut.  Ins.  Co.  2  John.  Ch  608. 
Watson  V.  Le  Roio,  6  Barb.  485.     Lynch  v.  Mut.  Ins.  Co.  18  Wend. 
253.     Grosvenor  v.  Allen^  9  Paige,  76,  77.) 


116  MORTGAGES. 

Where  lands  are  contracted  to  be  sold,  and  the  purchaser  ccntracts 
to  sell  a  part  of  such  lands,  the  residue  is  the  primary  fund  fur  the 
payment  of  the  original  purchase  money ;  and  if  the  original  pur- 
chaser transfers  different  parcels,  they  are  chargeable  in  the  inverse 
order  of  sale.     {Crafts  v.  AspimoaU^  2  Comst.  289.) 

AVe  have  hitherto  spoken  of  mortgages  in  fee,  which  are  of  the 
most  frequent  occurrence  in  this  state.  But  a  mortgage  may  be 
given  of  an  estate  for  years,  and  thus  convey  to  the  mortgagee  only 
an  interest  in  a  chattel  real.  In  the  English  books  it  is  said  that 
in  the  case  of  mortgages  for  terms  for  years,  if  the  money  is  not  paid 
on  the  day  appointed,  the  estate  becomes  ahsolictely  vested  at  law  ia 
the  mortgagee  for  the  residue  of  the  terra.  And  though  a  court  of 
equity  allows  the  m(3rtgagor  to  redeem,  within  a  reasonable  time,  by 
paying  the  principal,  interest  and  costs,  yet  such  payment  only  gives 
the  mortgagor  an  equitable  right  to  the  term.  {Cruise's  Big.  title 
15,  Mortgages,  ch.  1,  §  16  to  19.)  It  was  also  supposed  that  mort- 
gages/or years  were  attended  with  this  advantage,  that  on  the  death 
of  the  mortgagee,  the  term  and  the  right  to  receive  the  mortgage 
debt  vested  in  the  same  person ;  whereas  in  the  case  of  a  mortgage 
in  fee,  the  estate,  on  the  death  of  the  mortgagee  went  to  the  heir  or 
devisee ;  and  the  money  was  payable  to  his  executor  or  administra- 
tor.    (7c?.)     In  this  state,  these  consequences  do  not  follow. 

The  statute  with  regard  to  the  recording  of  mortgages  and  the 
power  of  sale  and  foreclosure  makes  no  distinction  between  mortgages 
in  fee  and  mortgages  for  term  of  years.  In  both  cases  the  money 
received  by  the  mortgagee  goes  to  the  executors  or  administrators 
and  not  to  the  heir.  {See  as  to  recording,  &c.  1  B.  S.  756 ;  as  to 
assets,  2  id.  83.)  With  us,  too,  the  mortgagor  is  deemed  seised, 
and  is  the  legal  owner  of  the  land  as  to  all  persons  except  the  mort- 
gagee. Indeed,  he  may  maintain  trespass  against  the  mortgagee,  or 
a  person  acting  under  his  license.  {Runyan  v.  Mersereau,  11  John. 
534.  Hitchcock  v.  Harrington,  6  id.  290.  Coles  v.  Coles,  15  id. 
313.)  The  mortgagor  is,  for  every  substantial  purpose,  the  real  owner 
of  the  land,  and  the  mortgagee  has  merely  a  lien  upon  it.  {Astor 
V.  3nUer,  2  Paige,  Q^.  Astor  v.  Hoyt,  5  Wend.  602.)  The  mortgage 
is  a  mere  security  for  the  debt ;  and  the  only  right  the  mortgagee  now 
has  in  the  land  itself,  is  to  take  possession  thereof,  with  the  assent  of 
the  mortgagor,  after  the  debt  has  become  due  and  payable,  and  to 
retain  such  possession  until  the  debt  is  paid,  (  Waring  v.  Smyth, 
2  Barl).  Ch.  119.)     An  outstanding  mortgage  is  not  a  breach  of  the 


FUTURE  ADVANCES.  117 

covenant  of  seisin.  {Sedgivich  v.  HallenhacJc,  7  John.  376.)  The 
mortgagor  has  no  such  estate  in  the  land  before  foreclosure  as  can 
be  sold  on  execution.     (3£orris  v.  3Ioivatt,  2  Paige,  586.) 

In  general,  a  mortgage  is  only  given  to  secure  the  repayment  of 
money  borrowed  at  the  time,  according  to  the  terms  of  the  contract, 
or  for  a  pre-existing  debt,  or  as  a  security  for  some  obligation  incur- 
red by  the  mortgagee  for  the  mortgagor,  as  where  the  former  has 
become  bail  for  the  latter,  or  the  like.  But  this  form  of  contract 
sometimes  takes  a  far  wider  scope.  It  often  becomes  necessary  to 
provide  for  future  advances  and  responsibilities,  and  it  is  desirable 
to  do  so  without  the  trouble  and  expense  of  a  new  mortgage  on  ev- 
ery successive  advance.  The  parties  may,  by  their  original  agree- 
ment, provide  for  such  a  case.  The  mortgage'should  be  for  a  sum 
large  enough  to  cover  the  contemplated  advances,  and  should  express 
on  its  face  its  purpose  and  object.  The  futui-e  advances  will  be  cov- 
ered by  the  mortgage,  or  by  a  judgment,  if  that  security  is  adopted, 
in  preference  to  the  claim  under  a  junior  intervening  incumbrance, 
with  notice  of  the  agreement.     {Truscott  v.  King,  2  Seld.  157.) 

The  principle  is  that  subsequent  advances  cannot  be  tacked  to  a 
prior  security,  to  the  prejudice  of  a  honafide  junior  incumbrancer  ; 
but  a  mortgage,  or  a  judgment,  is  always  good,  to  secure  future 
loans  when  there  is  no  intervening  equity,     (/d) 

The  case  of  Gordon  v.  Graham,  decided  by  Lord  Cowper  a  hun- 
dred and  forty  years  ago,  and  which  is  cited  by  Jewett,  J.  in  Trus- 
cott V.  King,  {supra,)  with  approbation,  is  an  illustration  of  the 
principle  on  which  the  doctrine  rests.  In  that  case,  A.  morto-ao-ed 
his  estate  to  B.  for  a  term  of  years,  to  secure  a  sum  of  money  already 
lent  to  A.,  and  also  all  other  sums  which  should  thereafter  be  lent, 
or  advanced  to  him.  A.  made  a  second  mortgage  to  C.  for  a  certain 
sum,  with  notice  of  the  first  mortgage,  and  then  the  first  mortgagee 
having  notice  of  the  second  mortgage,  lent  a  further  sum.  His  lord- 
ship decreed  that  the  second  mortgagee  should  not  redeem  the  first 
mortgage,  without  paying  as  well  the  money  lent  after,  as  that  lent 
before,  the  second  mortgage  was  made  ;  for,  he  added,  it  was  the 
folly  of  the  second  mortgagee  with  notice  to  take  such  security. 

The  supreme  court,  in  Livingston  v.  Mclnlay,  (16  John.  165,) 
applied  this  doctrine  to  a  judgment  entered  up  by  confession,  and 
held  that  where  it  was  part  of  the  original  agreement  at  the  time 
the  judgment  was  entered,  that  it  should  be  a  security  for  future 
advances,  beyond  the  amount  then  actually  due  to  the  plaintiff,  they 


118  FUTURE  advancp:s. 

saw  no  valid  objection  to  it  more  than  to  a  mortgage  Ix'ing  held  as 
security  for  future  advances ;  so  far,  at  least,  as  the  amount  of  the 
condition  of  the  bond.  The  same  doctrine  has  been  repeatedly  held 
in  this  state,  and  in  the  supreme  coiirt  of  the  United  States,  and  in 
the  courts  of  our  sister  states,  and  no  distinction  has  been  ttiken  in 
this  respect  between  a  security  by  judgment  and  a  security  by  mort- 
gage, {Brinkcrlioff  v.  Marvin,  5  John.  Ch.  li.  320.  James  v. 
Johnson,  6  id.  417  ;  aS'.  C.  reversed  in  error,  hut  not  impairing  it  as 
to  this  question,  2  Coiven,  24G.  United  States  v.  Hoe,  3  Cranch,  73. 
Shin-as  v.  Craig,  7  id.  34.  Conrad  v.  The  Atlantic  Ins.  Co.  1  Pe- 
ters, 386,  447.  Leeds  v,  Cameron,  3  Sumner,  488.  Hubbard  v. 
Savage,  8  Conn.  B.  215.  Walker  v.  Snediker,  1  Hof.  Ch.  U.  145. 
Commercial  Bank  v.  Cunningham,  24  Pick.  270.  Monell  v.  Smith, 
5  Cowen,  441.  Lyle  v.  Discomh,  5  Bin.  585.  Lansing  v.  Wood- 
worth,  1  Sandf.  Ch.  B.  43.  Barry  v.  Merchants'  Ex.  Co.  Id. 
280,  314.) 

It  was  well  remarked  by  Jewett,  J.  in  Truscott  v.  King,  (supra,) 
that  in  order  to  secure  good  faith,  and  prevent  error  and  imposition 
in  dealing,  it  is  necessary  that  tlie  agreement  as  contained  in  the 
record  of  the  lien,  whether  by  mortgage  or  judgment,  should  give  all 
the  requisite  information  as  to  the  extent  and  certainty  of  the  con- 
tract, so  that  a  junior  creditor  may,  by  inspection  of  the  record  and 
by  common  prudence  and  ordinary  diligence,  ascertain  the  extent  of 
the  incumbrance.  {St.  Andreiv's  Church  v.  Tompkins,  7  John.  Cli. 
14.  Pettibone  v.  GriswoJd,  4  Conn.  B.  158.  Stoughton  v.  Pasco, 
5  id.  442.  Shepard  v.  Shepard,  6  id.  37.  Hubbard  v.  Savage,  8 
id.  215.  Gales  v.  Henry,  6  Watts,  57.  Walker  v.  Snediker,  supra. 
Hart  V.  Chalker,  14  Co7in.  B.  77.) 

Where  a  bond  and  mortgage  are  actually  given  to  secure  a  particu- 
lar debt  therein  mentioned,  the  mortgagee  cannot,  as  against  subse- 
quent purchasers  or  incumbrancers,  hold  it  as  a  lien  for  an  entirely 
distinct  and  different  debt,  upon  jiarol  proof  that  it  was  intended  to 
cover  that  debt  also.  (The  Bank  of  Utica  v.  Finch,  3  Barb.  Ch. 
302.)  But  he  does  not  lose  his  security  by  extending  the  time  of 
payment,  although  such  extension  is  in  the  form  of  a  renewal  of  the 
note  which  was  held  as  collateral  security  for  the  payment  of  the 
same  debt ;  when  it  was  not  the  intention  of  either  party  to  dis- 
charge the  mortgage  security.     {Id.) 

A  mortgage  given  for  a  present  debt,  and  to  secure  future  advan- 
ces, should  either  be  taken  for  a  specific  sum  of  money,  sufficiently 


.  RECORDING  AND  PRIORITY.  119 

large  to  cover  the  amount  of  the  floating  debt  intended  to  be  secured, 
or  should  specifically  mention  the  sums  thereafter  to  be  advanced. 
It  is  presumed  that  either  course  would  be  free  from  objection.  {Id. 
Truscott  V.  King,  2  Seld.  161.)  The  purpose  and  intent  for  which 
the  security  was  executed  may  be  shown  by  parol  evidence.  Such 
evidence  does  not  contradict  the  written  instrument. 

But  neither  a  mortgage  or  judgment  can  be  rendered  available  to 
secure  the  party  taking  them,  for  future  advances  or  responsibilities, 
by  any  subsequent  parol  agreement,  in  preference  to  the  lien  of  a 
junior  incumbrancer.     {Id.     Ex  parte  Hooper,  19  Ves.  477.) 

Section  IL 
Of  recording,  and  priority  of  mortgages  and  assignments. 

The  early  statutes  of  this  state  required  the  registry  of  mortgages 
and  of  the  defeasance  thereof,  but  did  not  require  them  to  be  record- 
ed in  full  length,  (2  Greenl.  100.)  At  a  later  period  mortgages 
were  placed  upon  the  same  footing  as  other  deeds  with  respect  to 
the  mode  of  their  being  recorded,  and  for  nearly  forty  years  there 
has  been  no  essential  difference  between  them.  The  older  cases 
speak  of  mortgages  being  registered  or  unregistered;  a  language 
•which  is  equally  .appropriate  to  the  present  practice. 

By  the  existing  law,  every  conveyance  of  real  estate  within  this 
state,  made  after  the  passing  of  that  act,  is  required  to  be  recorded 
in  the  office  of  the  clerk  of  the  county  where  such  real  estate  is  situ- 
ated ;  and  every  such  conveyance  not  so  recorded  is  declared  to  be 
void  as  against  any  subsequent  purchaser,  in  good  faith  and  for  a 
valuable  consideration,  of  the  same  real  estate,  or  any  portion  there- 
of, whose  conveyance  shall  be  first  duly  recorded.     (1  R.  S.  756,  §  1.) 

By  the  2d  section  of  the  act,  the  clerks  of  the  several  counties  are 
required  to  provide  difierent  sets  of  books  for  the  recording  of  deeds 
and  mortgages  ;  in  one  of  which  sets  all  conveyances,  absolute  in 
their  terms,  and  not  intended  as  mortgages,  or  as  securities  in  the 
nature  of  mortgages,  are  to  be  recorded  ;  and  in  the  other  set,  such 
mortgages  and  securities  are  to  be  recorded. 

The  3d  section  provides  that  every  deed  conveying  real  estate, 
which  by  any  other  instrument  in  writing,  shall  appear  to  have  been 
intended  only  as  a  security  in  the  nature  of  a  mortgage,  though  it 
be  an  absolute  conveyance  in  terms,  shall  be  considered  as  a  mort- 
gage •  and  the  person  for  whose  benefit  such  deed  shall  be  made, 


120  OBJECT  OF  REGISTRY. 

shall  not  derive  any  advantage  from  the  recording  thereof,  unless 
every  writing  operating  as  a  defeasance  of  the  s.ame,  or  explanatory 
of  its  being  designed  to  have  the  effect  of  a  mortgage,  or  conditional 
deed,  be  also  recorded  therewith,  and  at  the  same  time. 

If  a  conveyance  was  intended  only  as  a  mortgage,  there  can  be  no 
good  reason  why  the  terras  on  which  it  is  to  be  defeasible  should  not 
aj^pear  on  its  face.  If,  through  inadvertence,  it  is  taken  as  an  abso- 
lute deed,  the  holder  may  comply  with  the  terms  of  the  statute,  by 
making  a  written  defeasance  specifying  the  conditions  on  which  it 
was  intended  to  be  given,  and  recording  both  together  in  the  book 
of  mortgages.  If  this  be  done  before  the  rights  of  any  third  party 
have  intervened,  he  will  not  be  molested,  and  if  he  neglects  it,  he 
will  only  be  in  the  same  situation  of  every  other  mortgagee  who  neg- 
lects to  have  his  security  recorded.     {White  v.  Moon,  1  Paige,  554.) 

The  statute  concerning  registry  applies  to  mortgages  of  leasehold 
as  well  as  of  freehold  estates.  (Johnson  v.  Stagg,  2  John.  510. 
Berry  v.  The  Mut.  Ins.  Co.  2  John.  Ch.  603.)  The  registry  under 
the  former  law,  and  of  course  the  recording  under  the  existing  law, 
without  due  proof  or  acknowledgment,  is  not  notice  to  a  subsequent 
purchaser.     (Frost  v.  Beehman,  1  id.  288.) 

The  statute  does  not  make  the  registry  of  a  mortgage  indispensa- 
ble. The  omission  only  exposes  the  mortgagee  to  the  hazard  of  los- 
ing his  lien,  in  case  of  a  subsequent  bona  fide  purchaser,  or  to  the 
postponement  of  it  to  a  subsequent  mortgage  first  recorded.  As  be- 
tween the  original  parties,  the  acknowledgment  and  recording  are 
not  necessary  to  its  validity  ;  nor  would  the  entire  omission  to  re- 
cord the  power  affect  the  sale  as  between  them.  (Berry  v.  The  Mut. 
Ins.  Co.  2  John.  Ch.  603.  Jackson  v.  Golden,  8  Coiven,  266.)  Nor 
is  priority  of  registry  of  any  avail  against  actual  previous  notice  of 
an  unrecorded  mortgage.     (Id.) 

The  decisions  in  this  state,  referred  to  in  the  preceding  section, 
permitting  a  deed  absolute  in  terms,  to  be  converted  into  a  mort- 
gage by  parol  evidence,  are  apparently  adverse  to  the  policy  of  the 
recording  laws.  Such  security  will  not  operate  to  the  prejudice  of 
subsequent  bona  fide  purchasers  or  incumbrancers  without  notice. 
The  decisions  must  be  understood  as  applying  only  to  the  parties  to 
the  deed,  and  their  representatives,  and  to  those  who  become  subse- 
quent purchasers  or  mortgagees,  with  full  notice  that  the  deed  abso- 
lute in  terms  was  intended  as  a  mortgage.  Notice  to  the  agent  or 
attorney  is,  in  such  cases,  notice  to  the  principal.     But  the  notice, 


VALUABLE  CONSIDERATION^.  121 

to  supply  the  place  of  a  recording  of  the  mortgage,  must  be  full  and 
clear  ;  must  be  more  than  barely  sufficient-  to  put  the  party  on  in- 
quiry. (JacJcson  v.  Van  Vallcenburgh,  8  Cowen,  260.  Willard's 
Eq.  Juris.  250,  251,  608.  Fort  v.  Burch,  6  Barb.  60.)  A  junior 
mortgagee  with  notice  of  a  prior  unrecorded  mortgage,  cannot  gain 
priority  by  recording  his  mortgage.  Nor  can  a  hona  fide  assignee 
of  such  a  mortgage,  without  notice,  unless  his  assignment  be  record- 
ed before  the  prior  mortgage.     {Fort  v.  Burch,  5  Denio,  187.) 

A  second  mortgagee  who  has  neglected  to  have  his  mortgage  reg- 
istered, will  not  be  relieved  against  a  prior  unregistered  mortgage, 
unless  he  shows  from  non-delivery  of  possession,  or  other  circum- 
stances, that  imposition  has  been  or  might  be  practiced  upon  him 
by  or  with  the  concurrence  of  the  first  mortgagee  which  could  not  be 
detected  or  guarded  against  by  the  exercise  of  ordinary  diligence. 
The  mere  circumstance  of  leaving  the  title  deeds  with  the  mortgagor, 
is  not  of  itself  sufficient  evidence  of  fraud  so  as  to  postpone  the  first 
morta;agee  to  a  second  mortgagee  who  has  taken  the  title  deeds  with- 
out  notice  of  the  prior  mortgage.  There  must  be  fraud,  or  gross 
negligence  equivalent  to  fraud,  on  the  part  of  the  first  mortgagee. 
The  recording  of  a  mortgage  is  with  us  a  substitute  for  the  deposit 
of  the  title  deeds.     {Berry  v.  Mutual  Ins.  Co.  2  John.  Ch.  603.) 

A  hona  fide  purchaser  of  land,  without  notice  of  a  prior  unrecord- 
ed mortgage,  holds  the  land  discharged  of  its  lien ;  and  a  subsequent 
fecording  of  the  mortgage  cannot  affect  his  title,  nor  the  title  of  his 
grantees  with  notice  of  the  mortgage.  {Jacksoji  v.  McChesny,  7  Coiv- 
en,  360.)  If  a  mortgagee  receive  his  mortgage  with  notice  of  a  former 
one,  and  with  the  understanding  that  it  is  to  have  priority,  the  re- 
cording of  his  own  first  cannot  give  it  preference.  {JacJcson  v.  Van 
Vallcenburgh,  8  Cowen.  260.) 

As  the  statute  protects  subsequent  purchasers  in  good  faith,  and 
for  a  valuable  consideration,  it  becomes  important  to  understand 
the  meaning  of  those  terms.  Something  more  is  required  than  a 
mere  valid  consideration,  sufficient  to  uphold  the  transaction  be- 
tween the  parties.  These  words  have  received,  in  the  courts  of  this 
state,  a  definite  judicial  construction.  They  import  that  the  pur- 
chaser, before  he  had  notice  of  the  prior  equity  of  the  holder  of  an 
unrecorded  mortgage,  must  have  advanced  a  new  consideration  for 
the  estate  conveyed,  or  have  relinquished  some  security  for  a  pre- 
existing debt  due  to  him.     The  mere  receiving  of  a  conveyance  in 


122  BEFORE  WHOM  ACKNOWLEDGED. 

payment  of  a  pre-existing  debt  is  not  sufficient.  (Dickerson  v.  Til' 
linghastj  4  Paige,  215.).  The  analogous  cases  of  the  assignee  of 
negotiable  jj.iprr  for  valuable  consideration,  without  nt)tice  of  ii  j)ri(»r 
equity,  throw  light  on  the  subject.  In  t\u)ne  cases  it  has  unifonnly 
been  held  that  there  must  be  a  parting  with  a  new  consideration,  by 
Buch  assignee  or  purchaser,  a  giving  up  of  some  other  security,  or 
devesting  himself  of  some  right,  or  placing  himself  in  a  worse  situation 
than  he  would  been  in  if  he  had  received  notice  of  the  prior  equita- 
ble title  or  lien,  previous  to  his  purchase,  in  order  to  constitute  him 
a  bona  fide  purchaser  for  a  valuable  consideration,  within  the  mean- 
ing of  the  rule.  The  leading  cases  on  the  subject  in  our  higher 
courts  are  Coddinyton  v.  Bay,  (20  John.  637 ;)  Stalker  v.  McDon- 
ald, (6  Hill,  93;)  Harris  v.  Norton,  (16  Barb.  264.) 

The  term  ^^ purchaser,"  as  used  in  the  statute,  embraces  every 
person  to  whom  any  estate  or  interest  in  real  estate  shall  be  con- 
veyed for  a  valuable  consideration,  and  also  every  assignee  of  a  mort- 
gage or  lease,  or  other  conditional  estate.  (1  B.  S.  762,  §§  37  and 
38.)  Hence  a  mortgagee  is  brought  within  the  term,  contrary  to 
the  decisions  under  the  former  law.  {Berry  v.  Mutual  Ins.  Co. 
2  John.  Ch.  603.) 

Under  the  former  law  the  recording  acts  did  not  apply  to  the  as- 
signment of  a  mortgage ;  and  no  notice  of  the  assignment,  actual  or 
constructive,  was  necessary  to  protect  the  jissignee  of  the  mortgage 
against  a  subsequent  assignee  or  against  other  persons  claiming  un- 
der the  assignee.  The  rights  of  the  parties  in  this  respect  depended 
upon  the  rule  existing  before  the.  recording  acts.  That  rule  was 
that  the  first  grantee  or  assignee  of  an  interest  in  real  estate  was 
entitled  to  a  preference,  whether  the  subsequent  assignee  or  purchaser 
had  or  had  not  notice  of  the  prior  assignment  or  grant.  The  revised 
statutes,  above  refeiTed  to,  have  extended  the  benefit  of  the  recording 
acts,  by  embracing  under  the  iQXTO.  jyurchasers  parties  not  formerly  in- 
cluded in  it.  {Vanderkemp  v.  Skelton,  11  Paige,  37.  Tlie  N.  Y. 
Life  Ins.  and  Trust  Co.  v.  Smith,  2  Barh.  Ch.  82.) 

The  statute  requires  that  to  entitle  conveyances  to  be  recorded 
they  should  be  acknowledged  by  the  parties  executing  the  same, 
or  be  proved  by  a  subscribing  witness  thereto.  [See  Appendix  for 
act,  3  R.  S.  46,  §  4,  5th  ed.  et  seq.  for  the  list  of  persons  before  whom 
a  deed  or  mortgage  can  be  proved  or  acknowledged.]  The  officer  tak- 
ing the  acknowledgment  is  required  to  know  or  to  have  satisfactory 
evidence  that  the  person  making  such  acknowledgment  is  the  indi 


ACKNOWLEDGMENT.  123 

vidual  described  in  and  who  executed  such  conveyance.  (1  R.  S.  758, 
§  9.)  The  acknoAvledgment  of  a  married  woman  residing  within  this 
state,  to  a  conveyance  purporting  to  be  executed  by  her.  cannot  be 
taken  unless  in  addition  to  the  requisites  above,  she  acknowledge  on  a 
private  examination  apart  from  her  husband,  that  she  executed  such 
conveyance  freely  and  without  any  fear  or  compulsion  of  her  husband ; 
and  no  estate  of  any  such  married  woman  can  pass  by  any  conveyance 
not  so  acknowledged,  {Id.  §  10.)  But  when  a  married  woman,  not 
residing  in  this  state,  joins  with  her  husband  in  any  conveyance  of 
any  real  estate  situated  within  this  state,  the  conveyance  has  the 
same  effect  as  if  she  were  sole ;  and  the  acknowledgment  or  proof  of 
the  execution  of  such  conveyance  by  her  may  be  the  same  as  if  she 
were  sole.     {Id.  §  11.) 

When  the  proof  of  the  execution  of  a  conveyance  is  made  by  a 
subscribing  witness,  such  witness  is  required  to  state  not  only  his 
own  residence,  but  also  that  he  knew  the  person  described  in  and 
who  executed  the  conveyance.  This  proof  cannot  be  taken  unless 
the  officer  by  whom  it  is  taken  is  personally  acquainted  with  such 
subscribing  witness,  or  has  satisfactory  evidence  that  he  is  the  same 
person,  who  was  a  subscribing  witness  to  such  instrument.  {Id.  §  12. 
Jachson  v.  Osborn,  2  Wend.  555.  Same  v.  Goidd,  7  id.  364.)  The 
object  of  these  provisions  is  to  prevent,  as  far  as  practicable,  the 
fraudulent  personation  of  one  person  for  another,  [For  form  of 
certificate  of  proof  and  acknowledgment,  see  Appendix.] 

It  would  seem  to  follow  from  the  foregoing  that  a  mortgage  must 
be  either  acknowledged  by  the  mortgagor,  before  a  proper  officer,  or 
be  attested  at  the  time  of  its  execution,  by  one  or  more  subscribing 
witnesses,  by  whom  it  can  be  proved,  in  order  to  its  being  recorded. 
But  the  statute  concerning  the  alienation  by  deed,  which  will  be 
noticed  more  at  large  elsewhere,  while  abolishing  the  mode  of  con- 
veying lands  by  feoffment  with  livery  of  seisin,  enacts  that  every 
grant  in  fee,  or  of  a  freehold  estate,  shall  be  subscribed  and  sealed 
by  the  person  from  whom  the  estate  or  interest  conveyed  is  intended 
to  pass,  or  his  lawful  agent ;  if  not  duly  acknowledged  previous  to 
its  delivery  according  to  the  provisions  of  the  act  we  have  been  con- 
sidering, its  execution  and  delivery  shall  be  attested  by  at  least  one 
witness ;  or  if  not  so  attested,  it  shall  not  take  effect  as  against  a 
purchaser  or  incumbrancer  until  so  acknowledged.  (1  B.  S.  738, 
§§  136,  137.)  The  purchasers  here  referred  to,  are  such  as  are  sub- 
sequent to  the  execution  of  the  unacknowledged  conveyance.     It  is 


124  MORTGAGE  FOR  PURCHASE  MONEY. 

valid  between  the  parties,  and  as  to  prior  purchasers  or  incumhran- 
cers,  though  it  be  neither  acknowledired  before  the  proper  officer,  or 
attested  by  a  subscribing  witness.  {Wood  v.  C'hapin,  3  Kcrii.  509. 
Voorhes  v.  Fresh.  Ch.  Amsterdam,  17  Barb.  103.) 

A  mortgage  not  registered  has  a  j>reference  over  a  subsequent  judg- 
ment docketed  ;  but  should  the  land  be  sold  by  the  sheriiF  under  tho 
judgment  prior  to  the  registry  of  the  mortgage,  a  honajide  pur- 
chaser at  the  sheriff's  sale  would  be  protected  against  the  mortgage. 
(Jackson  v.  Dubois,  4  John.  216.) 

The  bonafide  mortgagor  of  a  fraudulent  grantee,  whose  mortgage 
is  recorded  before  a  sherift''s  deed  obtained  by  a  creditor  of  the 
grantor,  on  a  judgment  rendered  after  the  recording  of  the  fraudulent 
deed,  is  entitled  to  a  preference.     {Ledyard  v.  Butler,  9  Pairje,  132.) 

There  is  a  controlling  equity  in  favor  of  the  claim  of  the  vendor 
of  lands  for  the  purchase  money,  over  that  of  any  creditor  of  the 
vendee.  This  equity  is  recognized  and  enforced  by  the  statute  which 
provides  that  whenever  lands  are  sold  and  conveyed,  and  a  mortgage 
is  given  by  the  purchaser  at  the  same  time,  to  secure  the  payment 
of  the  purchase  money  or  any  part  thereof,  such  mortgage  shall  bo 
preferred  to  any  previous  judgment  which  may  have  been  obtained 
against  the  purchaser.  (1  R.  S.  749,  §  5.)  Literally,  this  applies 
only  to  a  mortgage  given  by  the  })urchaser  to  the  vendor.  But 
should  a  third  person,  by  agreement  between  the  parties,  advance  the 
money,  and  the  mortgage  be  given  directly  to  him,  it  comes  within 
the  equity  of  the  statute,  and  such  mortgagor  is  entitled  to  the  same 
preference  over  a  prior  judgment  as  the  vendor  of  the  land  would 
have  had,  had  the  mortgage  been  executed  to  him,  {Jackson  v. 
Austin,  15  John.  477.) 

It  is  on  this  principle  of  an  instantaneous  seisin  of  the  vendee,  in 
cases  where  a  mortgage  is  given  back  for  the  purchase  money,  that 
the  widow  of  the  vendee  is  not,  in  such  cases,  entitled  to  dower. 
{Stoiv  V.  Tifft,  15  John.  458.) 

On  this  subject  it  has  been  held  as  a  rule  of  presumption,  that 
where  upon  the  purchase  of  land,  a  deed  is  executed  by  the 
vendor,  and  a  mortgage  upon  the  land  purchased  is  executed  by  the 
purchaser,  and  both  conveyances  are  acknowledged  and  recorded  at 
the  same  time,  the  presumption  is  that  they  were  executed  simulta- 
neously, and  that  the  mortgage  was  intended  to  secure  the  purchase 
money,  although  given  to  a  third  person  instead  of  the  vendor,  by  the 
direction  of  the  latter.  {Cunningham  v.  Knight,!  Barb.  S.  C.  R.  399.) 


INCIDENTS. 


Section  III. 


125 


Of  the  rights  and  interest  of  the  parties  at  laiv  and  in  equity,  and 
of  certain  incidents  of  the  estate. 

The  English  doctrine  with  respect  to  mortgages  has  been  very 
greatly  departed  from  in  this  state.  In  England  it  is  laid  down  by 
Mr.  Cruise  that  upon  the  execution  of  the  conveyance  by  which  a 
mortgage  is  created,  the  legal  estate  of  freehold  and  inheritance,  or 
the  legal  estate  of  the  term  of  years  created  by  the  mortgage,  be- 
comes immediately  vested  in  the  mortgagee.  A  clause,  it  i^  said, 
IS  usually  inserted  in  the  mortgage  deed,  that  until  default  is  made 
in  payment  of  the  mortgage  money  and  the  interest,  the  mortgagor 
shall  retain  the  possession  and  receive  the  rents.  He  thus  beconies, 
in  some  respects,  a  tenant  at  will  of  the  mortgagee;  and  when  the 
proviso  is  that  the  mortgagor  shall  continue  in  possession,  for  the 
number  of  years  given  for  the  repayment  of  the  mortgage  money, 
he  will  be  tenant  for  years  of  the  mortgagee. 

A  different  doctrine  has  long  prevailed  in  this  state.     With  us  it 
has  been  well  settled  from  an  early  day,  that  the  mortgagee  has  a 
mere  chattel  interest;  and  that  the  mortgagor  is  considered  as  the 
proprietor  of  the  freehold.     The  mortgage  is  deemed  a  mere  inci- 
dent to  the  bond  or  personal  security  for  the  debt ;  and  the  assign- 
ment of  the  interest  of  the  mortgagee  in  the  land,  without  an  As- 
signment of  the  debt,  is  considered  in  law  as  a  nullity.     {Jackson 
V.  Bronson,  19  John.  325.)     This  doctrine  was  carried  out  to  its 
consequences  in  Rumjan  v.  Mersereau,  (11  John.  534,)  where  it  was 
decided  that  the  mortgagor  or  a  purchaser  of  the  equity  of  redemp- 
tion may  maintain  trespass  against  the  mortgagee,  or  a  person  act- 
ing under  his  license.     These  cases  do  not  rest  upon  any  stipulation 
m  the  mortgage  deed  reserving  the  possession  to  the  mortgagor  until 
•default,  as  no  such  stipulation  is  usually  inserted  in  our  mortgages 
The  doctrine  rests  upon  the  general  principle  which  has  already 
been  elsewhere  adverted  to,  that  a  mortgage  is  merely  a  security 
for  the  debt,  and  that  the  mortgagee  has  no  interest  in  the  land 
but  only  a  lien  upon  it;  the  mortgagor  being  the  legal  owner' 
{Hitchcock  V.  Harrington,  6  John.  290.     Coles  v.  Coles  15  id  319* 
Aymar  v.  Bill,  5  John.  Ch.  570.     Morris  v.  Mowatt,  2  Paige  586 


126  REMEDY  OF  MORTGAGEES. 

Astor  V.  JUiller,  Id.  68.  Same  v.  Iloyt,  5  Wend.  C02.  Waring  v. 
Smyth,  2  Barb.  Ch.  119.     Dickinson  v.  Jackson,  6  Cowen,  147.) 

With  us,  to(i,  it  is  unneccssjiry  that  the  in()rt<;a;.^e  should  contain 
a  sti})ulation  fur  the  i)08sessiou  by  the  uiortj^agor  of  the  lands  uiort;- 
gaged  until  default ;  and  no  reconveyance  is  required  to  be  given 
by  the  mortgagee  on  receiving  payment  of  the  money  due,  though 
such  payment  be  not  made  at  the  day.     (^Waring  v.  Smijih,  S7i]trn.) 

The  mortgagee,  or  hi.s  assigns  or  representatives,  can  no  longer 
bring  ejectment  for  the  recovery  of  the  possession  of  the  mortgaged 
premises.  (2  7?.  S.  312,  §  57.)  He  may  indeed  take  ])ossession  of 
the  land  with  the  a.ssent  of  the  mortgagor,  after  the  debt  has  be- 
come due  and  payable,  and  retain  such  possession  until  the  debt  is 
paid.     (  Wariny  v.  Siinjth,  supra.) 

Whether  the  mortgagee  could  maintain  an  action  of  waste  against 
the  mortgagor  in  possession,  under  any  circumstances,  has  been 
litigated  in  our  courts.  In  Pctcrsoji  v.  Clark,  (15  John.  205,)  it 
was  held  that  such  action  could  not  be  maintained,  at  least  until 
after  a  forfeiture  of  the  mort<;a{re.  Thev  considered  his  interest  as 
contingent  until  breach  of  the  condition,  and  in  case  timber  was  cut 
down  by  the  mortgagor,  without  special  authority,  the  mortgagee 
had  no  such  interest  as  to  enable  him  to  bring  trover  for  the  trees. 

This  case  does  not  settle  the  right  to  the  action  for  waste  com- 
mitted after  the  forfeiture  of  the  mortgage.  That  question  arose  in 
Southivorth  v.  Van  J\-lt,  (3  Barb.  S.  C.  B.  347,)  under  circum- 
stances favorable  to  the  plaintiff.  The  premises  had  become  forfeited 
and  a  decree  obtained  for  a  foreclosure,  and  the  mortgaged  })remi8e8 
were  a  slender  security  for  the  debt.     The  action  was  upheld. 

The  nature  of  the  estate  of  the  mortgagee  is  such  that  his  reme- 
dies at  law  for  injury  to  the  security  are  circumscribed.  The  mort- 
gagee has  neither  y?fs  in  re,  nor  ad  rem,  but  a  mere  security  for  his 
debt.  The  title  to  the  land  is  still  in  the  mortgagor.  Nevertheless 
the  law  will,  in  some  cases,  give  redress  by  an  action,  to  a  party 
■whose  lien  by  mortgage  or  judgment  has  been  destroyed  or  impaired 
in  value.  It  will  do  so  when  the  injury  was  done  frandidcjifly,  but 
not  when  it  results  from  mere  nei;lifrence  and  want  of  due  care  and 
attention.     {Gardner  v.  Heartt,  3  Denio,  234.) 

The  remedy  in  equity,  both  on  the  part  of  mortgagor  and  mort- 
gagee, is  in  general  the  most  appropriate  and  effective.  When  the 
mortgagee  takes  possession  of  the  mortgaged  premises  before  forcclos- 


ACCOUNTS  BETWEEN  MORTGAGOR  AND  MORTGAGEE.  127 

ure,  and  occupies  them  himself,  he  must  account  for  the  rents  and 
profits,  at  the  rate  of  rent  which  the  premises  by  ordinary  care  would 
have  produced,  exclusive  of  taxes  or  repairs.  ( Van  Buren  v.  Olm- 
steacl,  5  Paige,  9.)  The  questions  in  cases  of  this  kind,  usually 
arise  on  a  bill  to  redeem,  brought  by  the  mortgagor  or  those  who 
have  succeeded  to  his  rights,  against  the  mortgagee  or  his  representa- 
tives. By  the  payment  of  the  debt,  whether  at  the  day  or  subse- 
quently, the  estate  of  the  mortgagee  is  annihilated.  (Southivorthv. 
Van  Pelt,  supra.  Edwards  v.  Farmers'  Fire  Ins.  and  Loan  Co. 
21  Wend.  467  ;  S.  G.  in  -error,  26  id.  541.)  The  only  difference 
between  a  payment  at  the  day,  and  a  payment  subsequently,  is  that 
in  the  latter  case,  the  party  seeking  to  redeem  may  be  compelled  to 
pay  costs,  and  in  the  former,  not.  Equity  requires  that  the  mort- 
gagee in  possession  should  do  no  act  to  the  prejudice  of  the  estate. 
He  is  not  authorized  to  cut  down  timber  and  commit  waste  uj)Oii 
the  premises,  even  though  the  proceeds  be  applied  to  the  satisfaction 
of  his  debt.  (  Yoide  v.  Richards,  Sax.  Cli.  R.  534.)  He  is  bound 
to  keep  the  premises  in  such  repair  as  to  preserve  them,  and  is  re- 
sponsible for  waste.  {Bainhridcje  v.  Owen,  2  J.  J.  Marsh.  P.  465. 
Fden  on  Inj.  204  and  notes.) 

It  is  most  usual,  however,  that  the  mortgagor,  or  some  one  claim- 
ing the  equity  of  redemption,  is  left  in  possession.  Though  the 
mortgagor  is  for  most  purposes  treated  as  the  legal  owner,  yet  as  the 
whole  estate  in  the  aggregate  constitutes  the  security  for  the  debt, 
equity  will  not  permit  the  mortgagor  to  reduce  it,  or  render  it  less 
valuable. 

In  one  case  where,  by  the  terms  of  the  mortgage,  the  mortgagor 
was  p.uthorized  to  cut  the  timber  for  the  purpose  of  having  the  pro- 
ceeds thereof  applied  to  the  payment  of  the  mortgage  debt,  yet,  be- 
cause the  mortgagor  was  proceeding  to  strip  the  mortgaged  })rem- 
ises  of  the  timber,  which  constituted  the  principal  value  of  the 
mortgage  security,  he  was  restrained  by  injunction  on  the  applica- 
tion of  the  mortgagee.     {Ensign  v.  Colhurn,  11  Paige,  503.) 

But  the  mortgagor  in  possession  may  cut  underwood,  and  culti- 
vate the  premises  in  a  good  husband-like  manner,  and  take  the  or- 
dinary fruits  of  the  laud.     {Eden  on  Inj.  205.) 

4-  mortgagee  who  seeks  to  sell  the  premises  under  the  power  of 
sale  for  more  than  is  actually  due,  will  be  restrained  on  the  applica- 
tion of  the  mortgagor,  provided  he  offers  to  pay  the  amount  equita- 
bly due,     {Vechte  v,  Brownell,  8  Paige,  212.) 


128  ACCOUNTS  BETWEEN  MORTGAGOR  AND  MORTGAGEE. 

A  mortgagee  in  possession  will  be  entitled  to  such  expenses  as  he 
is  put  to  in  keeping  the  estate  in  necessary  repair,  which  he  may 
add  to  the  principal  of  his  debt,  with  interest ;  and  if  a  mortgagee 
has  expended  any  sum  of  money  in  sui)porting  the  right  of  the  mort- 
gagor to  the  estate,  when  his  title  has  been  impeached,  the  mort- 
gagee may  add  this  to  the  principal  of  the  debt,  and  it  shall  carry 
interest.  {Godfrey  v.  Watson,  3  ^^^•.  518.)  He  is  not  to  be  al- 
lowed for  his  improvements  in  clearing  wild  land,  but  only  for 
necessary  reparations,  and  must  account  for  the  rents  and  profits  re- 
ceived by  him.  {Moore  v.  Cahlc,  1  John.  Cli.  385.)  Taxes  are  a 
regular  charge,  and  if  paid  by  him  they  are  to  be  allowed,  but  the 
expense  of  insurance  against  fire  is  not  a  charge  upon  mortgaged 
premises  unless  l)y  express  agreement  of  the  mortgagor  or  the  owner 
of  the  estate.     {Faure  v.  Winans,  Hopkins,  283.) 

It  is  the  general  practice  of  courts  of  equity  in  directing  an  ac- 
count between  a  mortgagor  and  mortgagee,  that  whenever  the  gross 
sum  received  exceeds  the  interest,  it  shall  be  api)lied  to  sink  the 
principal,  {Bohinson  v.  Cumming,  2  Ath.  410.)  This  rule,  said 
Lord  Hardwicke,  sometimes  acts  with  hardship  and  has  occasionally 
been  mitigated.  Where  the  sum  is  large  and  the  mortgagee  is 
forced  to  enter  on  the  estate,  he  subjects  himself  to  an  account. 
But  as  he  could  only  satisfy  his  debt  by  parcels,  and  was  a  bailiff  to 
the  mortgagor  without  a  salary,  subject  to  account,  it  was,  he 
thought,  well  observed  by  the  master,  that  he  was  not  obliged,  for 
every  trifling  excess  of  interest,  to  apply  it  to  sink  the  principal. 
And  his  lordship  further  said  that  he  did  not  know  that  the  court 
had  ever  laid  it  down  for  an  invariable  rule,  that  the  master  must 
always,  in  taking  such  trccount,  make  annual  rests.  {Gould  v.  Tan- 
cred,  2  Atk.  534  )  But  this  subject  will  be  more  fully  noticed  in  a 
subsequent  section. 

In  England  it  has  been  already  remarked,  that  in  the  case  of  a 
morto-age  in  fee,  a  proviso  is  contained  in  the  deed  that  upon  the 
payment  of  the  money  at  the  time  specified  the  mortgagor  shall  re- 
couvey  the  estate.  When  the  mortgage  is  made  by  a  demise  for 
years,  the  proviso  is  that  if  the  money  be  paid  at  the  time  specified, 
the  term  shall  cease.  When  the  money  in  such  a  case  is  not  paid 
at  the  day,  the  terra  becomes  absolute,  and  must  be  surrendered  or 
assigned.  Our  practice  in  this  respect  we  have  seen  is  different.  No 
reconveyance  is  necessary  on  the  payment  of  the  mortgage  money, 
whether  it  be  paid  at  the  day  or  subsequently.     (  Waring  v.  Smyth, 


DISCHARGE  OF  MORTGAGES.  129 

2  Barh.  C7i.  119.  Jackson  v.  Davis,  18  John.  7.)  This  results 
from  our  considering  the  mortgage  as  a  mere  lien  for  the  security  of 
the  debt,  and  the  mortgagor  substantially  as  the  owner  of  the  estate. 
The  statute,  instead  of  a  reconveyance,  has  provided  a  simple  and 
convenient  mode  of  acknowledging  satisfaction  when  the  money  is 
paid,  and  for  a  legal  discharge  of  the  mortgage  of  record.  It  is  thus 
enacted,  that  any  mortgage  that  has  been  registered  or  recorded,  or 
that  may  be  hereafter  recorded,  shall  be  discharged  upon  the  record 
thereof  by  the  officer  in  whose  custody  it  shall  be,  whenever  there  shall 
be  presented  to  him  a  certificate  signed  by  the  mortgagee,  his  personal 
representatives  or  assigns,  acknowledged  or  proved  and  certified  as 
is  required  to  entitle  conveyances  to  be  recorded,  specifying  that  such 
mortgage  has  been  paid,  or  otherwise  satisfied  or  discharged.  (1  R.  S. 
761,  §  28.)  This  certificate  and  the  proof  or  acknowledgment  of 
it  are  required  to  be  recorded  at  full  length  ;  and  a  reference  is  then 
made  to  the  book  and  page  containing  such  record,  in  the  minute,  of 
the  discharge  of  such  mortgage,  made  by  the  officer  upon  the  record 
thereof  {Id.  §  29.)  The  original  act  of  Ai)ril,  1801,  and  which 
was  in  force  until  1830,  required  the  certificate  to  be  attested  by 
two  or  more  subscribing  witnesses,  but  did  not  require  the  registry 
or  recording  of  the  certificate.  (1  K.  &  R.  481,  §  4.)  At  the  re- 
vision in  1830,  the  attestation  of  witnesses  was  dis})ensed  with,  and 
the  certificate  of  discharge  was  required  to  be  proved  or  acknowledg- 
ed, as  in  the  case  of  deeds,  and  to  be  recorded  at  full  length,  and 
such  is  the  existing  law  of  this  state.  A  mortgage  properly  dis- 
charged ceases  to  be  a  lien  upon  the  estate,  and  the  parties  are  re- 
mitted to  their  respective  rights  as  they  existed  antecedently  to  the 
giving  of  the  mortgage. 

It  may  sometimes  be  a  question,  when  two  or  more  mortgages  are 
given  at  the  same  time  upon  the  same  estate,  and  acknowledged  and 
recorded  at  the  same  time,  as  to  which  is  to  have  priority.  If  in 
Buch  a  case  each  mortgagee  was  cognizant  of  the  giving  of  the  other 
mortgage,  the  recording  acts  have  no  application  to  the  transaction, 
in  respect  to  the  question  of  priority.  A  court  of  equity,  however, 
will  in  such  a  case  give  efiect  to  the  agreement  and  intention  of  the 
parties,  and  for  this  purpose  will  presume  that  the  one  intended  to 
be  preferred  was  delivered  first.  {Jones  v.  Phelps,  2  Barb  Ch.  440.) 
The  contemporaneous  recording  of  two  or  more  mortgages  does  not  ex- 
clude the  operation  of  any  facts  or  circumstances  which  go  to  show 

Will.— 9 


130  EFFECT  OF  TENDER. 

that  one  ought  equitably  to  be  preferred  to  the  other.     (Staff'ord  v. 
Va7i  Rensselaer,  9  Coiven,  316" ;  S.  C.  affirmed,  1  HopTc.  5G9.) 

But  suppose  a  trustee  has  two  sums  of  money  belonging  to  differ- 
ent cestui  que  trusts,  and  loans  both  sums  to  one  person  at  the  same 
time,  and  takes  separate  mortgages  upon  the  same  premises,  to  se- 
cure the  payment  of  the  moneys  loaned,  and  without  intending  to 
give  a  priority  to  either  mortgage,  in  such  a  case  there  is  no  doubt 
that  the  two  mortgages  must  be  paid  ratably,  if  the  fund  is  not 
sufficient  to  pay  both  ;  nor  would  it  make  any  difference  that  one  of 
the  mortgages  happened  to  be  received  by  the  clerk  and  to  be  recorded 
a  short  time  previous  to  the  other.  {lihodes  v.  Canjield,  8  Paige, 
545.)  But  should  the  mortgage  first  recorded  be  foreclosed  under 
the  statute,  and  the  premises  be  sold  to  a  bona  fide  purchaser  who 
had  no  notice  that  the  two  mortgages  were  given  simultaneously,  it 
would  raise  a  different  question.  The  bono,  fide  purchaser  would 
probably  gain  a  priority.     {Id.) 

It  was  at  one  time  supposed  that  a  tender  of  the  money  due  on  a 
mortgage,  in  order  to  discharge  the  Ipnd  from  the  effect  of  the  mort- 
gage lien,  must  be  at  the  day  it  becomes  due  by  the  condition. 
{Merritt  v.  Lambert,  7  Paige,  344.)  Such  seems  to  have  been  the 
ancient  law  upon  this  subject.  {Arnot  v.  Post,  6  Hill,  68 ;  S.  G. 
2  Denio,  344.)  But  the  weight  of  authority  in  this  state  seqjns  to  be 
that  if  the  mortgagor  tenders  the  money  to  tho  mortgagee,  and  he 
refuses  it,  whether  it  be  on  the  law  day,  or  at  any  time  before  actual 
foreclosure,  the  land  is  freed  forever  from  the  condition,  although 
the  debt  is  not  thereby  extinguished.  It  becomes  thenceforth  the 
merely  personal  debt  of  the  party.  {Edwards  v.  Tlie  Farmers'  L. 
and  T.  Co.  21  Wend.  467;  S.  C.  in  error,  26  id.  541.)  This  doc- 
trine results  from  disregarding  our  notions  as  derived  from  the  strict 
law  of  real  property,  and  applying  to  the  case  the  more  reasonable 
principles  of  a  court  of  equity  in  relation  to  this  form  of  security. 

The  mortgages  given  to  the  commissioners  under  the  act  of  April 
5, 1837,  {Laws  of  1837,  p.  121,)  authorizing  a  loan  of  certain  moneys 
belonging  to  the  United  States,  deposited  with  the  state  of  New 
York  for  safe  keeping,  vest  an  absolute  and  indefeasible  estate  in  fee 
in  the  lands  mortgaged,  free  from  all  equity  of  redemption,  on  the 
borrower's  neglect  to  pay  yearly  and  every  year,  on  the  first  Tuesday 


AUTHORITY  TO  SELL  MUST  BE  STRICTLY  PURSUED.         131 

of  October,  or  within  twenty-three  days  thereafter,  the  yearly  interest 
and  the  principal  when  it  becomes  due.  The  statute  also  requires 
that  on  the  payment  of  the  entire  sura  due,  the  commissioners  shall, 
if  required,  give  to  the  mortgagor  a  release  of  the  mortgage,  and 
tear  from  the  same  the  seal  of  the  mortgagor,  and  make  an  entry  in 
the  record  of  the  time  when  such  release  was  given. 

Under  this  statute  it  has  been  held  that  though  on  default  of  pay- 
ment the  commissioners  of  the  county  where  the  mortgaged  lands  are 
situated,  became  seised  of  an  absolute  and  indefeasible  estate  in  fee, 
in  the  said  lands,  yet  the  right  of  redemption  is  not  thereby  barred, 
but  exists  in  full  force,  until  the  premises  are  disposed  of  at  a  legal 
public  sale  in  conformity  to  the  statute.  (Sherivood  v.  Heade,  7  Rill, 
433.  Jackson  v.  liJiodes,  8  Coiv.  47.  Ohnstead  v.  Elder,  2  Sand.  325.) 
This  results  from  the  peculiar  language  of  the  30th  and  31st  sections 
of  the  act  of  1837,  p.l21.  Though  the  introductory  clause  of  the  30th 
section  utterly  forecloses  the  mortgagor  of  all  equity  of  redemption 
on  his  failure  to  pay  the  money  as  directed,  the  subsequent  clause 
allows  him,  his  heirs  or  assigns,  after  such  default,  to  retain  possess- 
ion of  the  mortgaged  premises  until  the  first  Tuesday  of  February 
thereafter,  and  to  redeem  the  same  as  thereinafter  provided.  The 
31st  section  directs  the  commissioners  to  advertise  the  premises  for 
sale  at  the  court  house  in  said  county,  on  the  first  Tuesday  of  Feb- 
ruary, and  on  such  sale  directs  that  the  purchaser  thereof  shall  hold 
and  enjoy  such  estate  in  the  said  lands  as  was  conveyed  to  the  said 
commissioners  by  the  said  mortgage,  clearly  and  absolutely  discharged 
of  and  from  all  benefit  and  equity  of  redemption,  and  all  other  in- 
cumbrances made  or  sufiered  after  the  execution  of  the  said  mort- 
gage by  the  mortgagor,  his  or  her  heirs  or  assigns. 

In  the  case  of  Sherwood  v.  Heads,  (supra,)  it  was  said  by  Beards- 
ley,  J.  in  delivering  the  judgment  of  the  court  of  errors,  that  the 
authority  to  sell  as  conferred  by  the  statute  is  special  in  its  nature, 
and  must  be  strictly  pursued,  or  the  sale  will  be  invalid.  It  is 
the  language  of  all  the  cases  in  this  state  on  the  subject,  that  a 
statute  authority  by  which  a  man  may  be  deprived  of  his  estate 
must  be  strictly  pursued.  Every  requisite  of  the  statute  havino- 
the  semblance  of  benefit  to  the  owner  must  be  strictly  complied 
with.  {Bloom  v.  Burdick,  1  Hill,  141.  Thatcher  v.  Powell, 
6  Wheat.  119.     Sharp  v.  Johnson,  4  Hill,  99.) 

A  sale  by  one  of  the  commissioners  under  the  act  of  1837,  is 
void.     Both  must  be  present  and  participate  in  the  sale.     The  sub- 


132  STATUTORY  FORECLOSURE. 

sequent  execution  of  a  deed  by  the  two  cannot  aid  such  sale.     [Pow 
ell  V  Tuttle,  3  Comst.  36,  ovtrruUny  Kinrj  v.  Stow,  G  John.  Cli.  323.) 

If  the  mortgagor  becomes  the  purchaser  under  a  regular  sale  of 
the  commissioners  and  gives. a  new  mortgage, for  the  original  j)rin- 
cii)al,  it  is  a  mortgage  for  the  j)urchase  money,  and  upon  a  subse- 
quent default,  and  a  failure  of  any  one  to  bid  on  the  sale,  the  com- 
missioners are  entitled  to  the  possession  as  against  one  who  has 
acquired  title  under  a  judgment  against  the  mortgagor,  docketed 
intermediate  the  two  mortgages.    (Com'rs  v.  Chase,  G  Barb.  37.) 

The  various  loan  acts  of  this  state  of  1792,  1808  and  1837,  con- 
tained the  same  features  with  respect  to  tlie  absolute  vesting  of  the 
estate,  and  foreclosure,  but  it  is  not  deemed  of  sufficient  importance 
to  notice  them  more  at  large.  {Powell  v.  Tuttle,  3  Comst.  403.)  In 
1850,  an  act  was  ])assed  for  the  final  settlement  of  the  loans  of 
1792  and  1808,  by  a  transfer  to  the  United  States'  deposit  fund, 
and  to  abolish  the  office  of  loan  commissioner.  (Laws  of  1850,  ch. 
337,  i>.  732.) 

Section  IV.  * 

Of  the  poiver  of  sale  and  statutory  foreclosure. 

It  has  long  been  usual  in  this  state  to  insert  in  the  mortgage  a 
power  of  sale,  to  the  effect  that  in  case  default  should  be  made  in 
the  payment  of  the  principal  or  interest,  as  provided  in  the  mort- 
gage, then  the  mortgagee,  his  executors,  administrators  and  assigns 
are  empowered  to  sell  the  mortgaged  premises,  with  the  appurte- 
nances, or  any  part  thereof,  in  the  manner  prescribed  by  law ;  and 
out  of  the  money  arising  from  such  sale,  to  retain  the  said  princi- 
pal and  interest,  together  with  the  costs  and  charges  of  making  such 
sale ;  and  rendering  the  overplus,  if  any  there  be,  on  demand,  to  the 
mortgagor,  his  heirs  or  assigns. 

Previous  to  1830,  to  entitle  the  party  to  execute  a  power  of  sale,  he 
must  have  been  at  the  time,  at  least  twenty-five  years  old,  and  that 
rule  applied  to  all  powers  executed  since  the  19th  day  of  March, 
1775.  {Laios  of  1813,  2^.  375,  §  5.)  At  the  revision  of  the  laws 
in  1830,  while  the  old  rule  was  recognized  for  all  past  transactions,  the 
age  of  twenty-one  years  was  taken  as  the  age  of  majority  in  all 
future  cases.  (2  R.  S.  545.)  A  power  of  sale  in  a  mortgage  exe- 
cuted in  1792  by  a  person  under  the  age  of  twenty-five  years  was 
void.     {Burnet  v.  Denniston,  5  John.  Ch.  35.)     A  power  of  sale  in 


STATUTORY  FORECLOSURE.  133 

a  mortgage  is  of  no  importance  except  to  give  the  party  the  right 
to  the  statutory  foreclosure ;  if  there  be  no  power  of  sale  in  the  mort- 
gage, the  foreclosure  can  only  be  conducted  in  a  court  of  equity, 
according  to  the  course  and  practice  of  such  court. 

The  proceedings  under  the  statute  to  foreclose  by  advertisement, 
are  pointed  out  in  the  act.  To  entitle  the  holder  of  the  mortgage 
to  give  the  notice  prescribed  by  law,  and  to  make  such  foreclosure, 
it  is  requisite  (1.)  That  some  default  in  a  condition  of  such  mort- 
gage shall  have  occurred,  by  which  the  power  to  sell  became  opera- 
tive. (2.)  That  no  proceeding  shall  have  been  instituted  at  law,  to 
recover  the  debt  then  remaining  secured  by  such  mortgage,  or  any 
part  thereof ;  or  if  any  suit  or  proceeding  has  been  instituted,  that 
the  same  has  been  discontinued,  or  that  an  execution  upon  the  judg- 
ment rendered  thereon  has  been  returned  unsatisfied  in  whole  or  in 
part.  (3.)  That  such  power  of  sale  has  been  duly  registered,  or  the 
mortgage  containing  the  same  has  been  duly  recorded.  (2  E.  S. 
545,  §2.) 

Notice  that  such  mortgage  will  be  foreclosed  by  a  sale  of  the  mort- 
gaged premises,  or  some  part  of  them,  shall  be  given  as  follows  : 
1.  By  publishing  the  same  for  twelve  weeks  successively  at  least 
once  in  each  week,  in  a  newspaper  printed  in  the  county  where  the 
premises  intended  to  be  sold  shall  be  situated,  or  if  such  premises 
shall  be  situated  in  two  or  more  counties,  in  a  newspaper  printed  in 
either  of  them.  2.  By  affixing  a  copy  of  such  notice,  at  least  twelve 
weeks  prior  to  the  time  therein  specified  for  the  sale,  on  the  outward 
door  of  the  building  where  the  county  courts  are  directed  to  be  held, 
in  the  county  where  the  premises  are  situated  ;  or  if  there  be  two  or 
more  such  buildings,  then  on  the  outward  door  of  that  which  shall 
be  nearest  the  premises  ;  and  by  delivering  a  copy  of  such  notice  at 
least  twelve  weeks  prior  to  the  time  therein  specified  for  the  sale,  to 
the  clerk  of  the  county  in  which  the  mortgaged  premises  are  situa- 
ted, who  shall  immediately  affix  the  same  in  a  book  prepared  and 
kept  by  him  for  that  purpose  ;  and -who  shall  also  enter  in  said  book, 
at  the  bottom  of  such  notice,  the  time  of  receiving  and  affixing  the 
same,  duly  subscribed  by  said  clerk,  and  shall  index  such  notice  to 
the  name  of  the  mortgagor  ;  for  which  service  the  clerk  shall  be  en- 
titled to  a  fee  of  twenty-five  cents.  (2  E.  S.  545,  §  3,  as  amended 
1842,  ch.  277,  §  5  ;  and  1857,  ch.  308,  §  1.  3  R.  S.  859,  860,  5th  ed.) 
3.  By  serving  a  copy  of  such  notice,  at  least  fourteen  days  prior 
to  the  time  therein  specified  for  the  sale,  upon  the  mortgagor  or  his 


134  STATUTORY  FORECLOSURE. 

personal  representatives,  and  uj)on  the  subsequent  grantees  and 
mortgagees  of  the  premises  whose  conveyance  and  mortgage  shall  bo 
upon  record  at  the  time  of  the  first  jiublicatinn  of  tlie  notice,  and 
upon  all  persons  having  a  lien  by  or  undt-r  a  judgment  or  decree  up- 
on the  mortgaged  premises,  subsequent  to  such  mortgage,  personally, 
or  by  leaving  the  same  at  their  dwelling  house  in  charge  of  some  ]>er- 
son  of  suitable  age,  or  by  serving  a  cojty  of  such  notice  upon  said 
persons  at  least  twenty-eight  days  prior  to  the  time  therein  specified 
for  the  sale,  by  depositing  the  same  in  the  post  office,  properly  folded 
and  directed  to  the  said  persons  at  their  respective  jdaces  of  resi- 
dence. (2  li.  S.  54C,  as  amended  1844,  ch  34G,  §  L  3  7?.  S.  SCO, 
5th  ed.) 

Previous  to  the  act  of  1842,  a  notice  of  twenty-four  weeks  was 
necessary.  In  James  v.  StuU,  (9  Barb.  482,)  it  became  a  question 
whether  the  change  from  twenty-four  weeks  to  twelve  weeks  was  not 
unconstitutional  and  void,  so  far  as  o|)erated  upon  mortgages  in  ex- 
istence at  the  time  of  its  passage,  and  it  was  held  to  be  a  valid  exer- 
cise of  the  power  of  the  legislature  over  the  remedy,  and  did  not 
affect  the  obligation  of  the  contract. 

With  regard  to  the  time  of  the  publication  of  notice,  it  has  been 
held  that  the  first  publication  of  a  twelve  weeks'  notice  must  be  at 
least  eighty-four  days,  or  12  full  weeks  before  the  sale,  one  day  be- 
ing included  and  one  excluded  ;  and  the  publication  must  be  in  each 
intervening  week  until  the  expiration  of  the  time  required  by  the 
statute.     {Bicnce  v.  Jiced,  16  Barb.  347.) 

With  regard  to  the  notice  forwarded  through  the  post  office,  it 
has  been  held  that  the  statute  does  not  require  that  it  should  be 
deposited  in  any  particular  post  office ;  the  rule  applicable  to  attor- 
neys requiring  the  notice  to  be  deposited  in  the  post  office  at  the 
residence  of  the  attorney  making  the  service,  (Schenck  v,  McKee, 
4  How.  246,)  not  applying  to  a  foreclosure  of  mortgages  under  the 
statute.  The  judge  however  intimated  that  it  should  be  mailed  in 
this  state,  as  it  is  a  proceeding  here.  [Bunce  v.  Reed,  supra.  Stan- 
ton V.  Cline,  1  Kernan,  196.) 

A  copy  of  the  notice  must  be  served  on  the  mortgagor  if  he  is 
living,  and  in  case  of  his  death,  on  his  personal  representatives. 
This  must  be  complied  with,  or  the  foreclosure  will  be  void.  {Cole 
V.  Moffit,  20  Barb.  18.     St.  John  v.  Bumpstead,  17  Barb.  100.) 

The  statute  prescribes  with  great  particularity  what  shall  be  con- 
tained in  the  notice.     It  must  specify,   1.  The  names  of  the  mort- 


STATUTORY  FORECLOSURE.  13g 

gagor  and  of  the  mortgagee,  and  the  assignee  of  the  mortgage,  if  any ; 
2.  The  date  of  the  mortgage  and  where  recorded,  or  where  the  power 
of  sale  is  registered;  3.  The  amount  claimed  to  be  due  thereon  at 
the  time  of  the  first  pubh-cation  of  such  notice  ;  and  4.  A  description 
of  the  mortgaged  premises,  conforming  substantially  with  that  con- 
tamed  m  the  mortgage.     (2  R.  S.  546,  §  4;  Id  830,  5th  ed.) 

The  statute,  requiring  tlie  amount  claimed  to  be  due  at  the  time 
of  the  first  publication,  is  directory  only,  and  no  penalty  is  prescribed 
for  an  error  m  this  respect.     An  erroneous  claim  as  to  the  amount 
will  not  ordmarily  vitiate  the  sale,  unless  it  be  fraudulently  done 
^^v7*^no°'''i''^'  ^'  calculated  to  mislead.     {Klock  v.  Cronkhite,  1 
Mill,  108.  Bunce  v.  Reed,  sup.  Jencksv.  Alexander,  11  Paige  626  ) 
In  case  the  bond  and  mortgage  are  payable  by  installments,  the 
mortgagee  or  his  assignees,  under  the  ordinary  power  of  sale,  must 
sell  for  the  whole  sum  secured  by  the  mortgage,  whether  it  be  actu- 
ally due  or  not.     By  failure  to  pay  the  first  installment  the  whole 
bond  at  law  becomes  due.     The  mortgagee  should  therefore  state  in 
his  notice  and  claim  the  whole  amount  secured  by  the  mortgage  to 
be  due  and  payal^le  on  the  first  default.    (Ilolden  v.  Gilbert,  7  Paige, 
208      Cox  V.   Wheckr,  Id.  248.)     Should  the  mortgagee  sell  the 
whole  premises  on  a  mortgage  payable  by  installments,  subject  to 
the  future  installments,  the  land  would  become,  in  equity,  the  pri- 
mary fund  for  the  payment  of  such  residue,  and  the  mortgagor 
would  be  entitled  to  any  surplus  proceeds  of  the  sale.     Should  the 
mortgagee  himself  become  the  purchaser,  the  whole  mortgage  debt 
would  be  extinguished.     (Cox  v.  Wheeler,  7  Paige,  248     Tice  v 
Am,^  2  John.  Ch.  125.)     The  mortgagee  has  no  doubt  the  ri^^ht 
to  sell  the  premises  under  the  power  discharged  from  the  lien  of  fu- 
ture installments,  and  to  retain  their  amount  out  of  the  surplus 
proceeds  of  the  sale.     {Holden  v.  Gilhert,  supra.)     In  efi-ect  the 
whole  debt  becomes  due  on   the  happening  of  the  first  default. 
Hand,  J  m  Bunce  v.  Peed,  (supra,)  says  that  it  is  most  regular  to 
sell  for  the  whole  amount,  on  a  statute  foreclosure,  though  a  sin^^le 
installment  be  due ;  but  he  intimates  that  a  power  may  be  so  drawn 
as  to  make  more  than  one  sale. 

In  view  of  the  embarrassments  attending  a  statutory  foreclosure 

at  law,  when  the  mortgage  is  payable  by  installments,  the  better 

remedy  would  seem  to  be  a  foreclosure  in  a  court  of  equity  in  cases 

of  that  kind.     (2  P.  S.  191.     Leonard  v.  Morris,  9  Paije,  90 

It  IS  notmuispensable  to  aright  to  the  statutory  foreclosure/that 


13G  STATUTORY  FORECLOSURE. 

the  mortgnge  should  be  payable  in  money  alone.  When  it  was  giv- 
en to  secure  the  payment  of  a  debt  in  specific  articles,  and  the  value 
of  the  articles  was  liquidated  by  the  mortgage  in  case  of  default,  it 
was  held  to  be  equivalent  to  a  mortgage  to  secure  the  payment  of 
money.     {Jacks      v.  Turner,  7  Wend.  458.) 

But  when  the  condition  of  the  mortgage  is  for  the  performance 
of  covenants,  and  the  damages  are  unliqtiidated,  it  is  quite  clear  that 
there  can  be  no  foreclosure  under  the  statute,  and  that  the  remedy 
is  either  by  an  action  at  law  on  the  bond,  or  by  bill  in  equity  to 
foreclose  the  mortgage.  {Ferguson  v.  Kimball,  3  Barh.  C7i.  619. 
Ferguson  v.  Ferguson,  2  Comst.  364.) 

The  statute  has  wisely  provided  that  a  sale  under  a  statute  fore- 
closure may  be  postponed  from  time  to  time,  by  inserting  a  notice 
of  such  postponement,  as  soon  as  practicable,  in  the  newspaper  in 
which  the  original  advertisement  was  published,  and  continuing  such 
publication  until  the  time  to  which  the  sale  shall  be  postponed. 
(2  R.  S.  546,  §  5.)  But  the  notice  of  such  postponement  as  published  in 
the  paper  must  conform  to  the  adjournment  as  previously  announced. 
A  postponement  may  indeed  be  made  before  the  day  appointed  for 
the  sale,  by  inserting  a  notice  thereof  in  the  newspaper  in  which  the 
original  advertisement  was  published,  {Miller  v.  Hull,  4  Denio,  107,) 
as  well  as  on  the  day  at  which  had  been  originally  appointed  in  the 
notice.     (Td.) 

The  sale  under  a  power  is  required  to  be  at  public  auction,  in  the 
daytime,  in  the  county  where  the  mortgaged  premises,  or  some  part 
of  them,  are  situated ;  except  in  sale  on  mortgages  to  the  people  of 
this  state,  in  which  cases  the  sale  may  be  made  at  the  capitol.  If 
the  premises  consist  of  distinct  farms,  tracts  or  lots,  they  must  be 
sold  separately ;  and  no  more  farms,  tracts  or  lots  may  be  sold  than 
are  necessary  to  satisfy  the  amount  due  on  such  mortgage,  at  the 
time  of  the  first  publication  of  notice  of  sale,  with  interest,  and  the 
costs  and  expenses  allowed  by  law.  (3  B.  S.  860,  §  6,  5th  ed.) 
"Under  this  statute  it  has  been  held  that  the  sale  to  make  an  efiect- 
ual  foreclosure  must  be  at  public  auction,  notwithstanding  the  power 
contained  in  the  mortgage  authorizes  the  mortgagee  on  default  to 
sell  the  premises  at  private  sale  to  satisfy  the  debt.  {Lawrence  v. 
The  Farmers'  Loan  and  Trust  Co.  3  Kern.  200.) 

The  statute  requiring  mortgaged  premises  to  be  sold  in  parcels 
was  designed  to  provide  for  a  sale  of  premises  consisting,  at  the  time 
the  mortgage  was  given,  of  distinct  tracts,  farms  or  lots,  and  mort- 


STATUTORY  FORECLOSURE.  I37 

gaged  and  described  as  such;  and  not  for  the  sale  of  premises 
mortgaged  as  one  farm,  tract  or  lot,  and  being  in  fact  but  one  farm, 
tract  or  lot  at  that  time,  although  subsequently  subdivided.  {Lam- 
er son  V.  Marvin,  8  Barh.  9.) 

At  the  common  law,  the  power  of  sale  contained  in  a  mortgage  of 
real  estate  could  only  be  executed  by  giving  a  deed.  {Arnot  v. 
McClure,  4  Demo,  44.)  It  may  still  be  executed  in  that  way  when 
a  party  other  than  the  mortgagee  or  his  assigns  is  the  purchaser. 
In  1808  the  mortgagee  or  his  assignee  or  legal  representatives  were 
authorized  by  statute  to  purchase  for  his,  her  or  their  benefit  or  ac- 
count, (5  Web.  341,  ^5;1RL.  375,  §  10 ;)  and  such  is  the  exist- 
ing law.  (3  B.  S.  861,  §  7,  5th  ed.)  As  the  mortgagee  could  not 
convey  to  himself,  it  was  very  justly  concluded  that  the  legislature 
mtended  that  the  foreclosure  should  be  complete  without  a  deed 
{Jackson  V.  Colden,  4  Coioen,  266,  276.  She  v.  Manhattan  Co 
1  Paige,  48.) 

The  affidavits  of  sale  and  of  publication  are  required  to  be  record- 
ed by  the  county  clerk  in  a  book  kept  for  the  record  of  mortgages ; 
and  the  original  affidavits,  the  record  thereof,  and  certified  copies  of 
such  record  are  made  presumptive  evidence  of  the  facts  therein  con- 
tained.    (2  R.  S.  547,  §  10,  as  amended  in  1844.  cA.  346   §  2   and 
1857,c7i.308,§2.    3  B.  S.  86,  5th  ed.    Buncev.Beed,16Barb.U7.) 
In  1838  the  act  was  so  amended  by  ch.  266,  §  8,  that  when  the 
mortgaged  premises,  or  any  part  thereof,  shall  have  been  purchased 
at  such  sale  by  the  mortgagee,  his  legal  representatives,  or  his  or 
then-  assigns,  or  by  any  other  person  or  persons  whatsoever,  the  affi- 
davits of  the  publication  and  affixing  notice  of  sale,  and  of  the  cir- 
cumstances of  such  sale,  shall  be  evidence  of  the  sale  and  of  the  fore- 
closure of  the  equity  of  redemption,  without  any  conveyance  being 
executed,  in  the  same  manner  and  with  the  like  effect  as  a  convey- 
ance executed  by  a  mortgagee,  upon  such  sale  to  a  third  person,  has 
heretofore  been.     (Bunce  v.  Beed,  supra.     Cohoes  Co   v  Goss  13 
Barh.  137.     3  B.  S.  862,  5th  ed.) 

The  revised  statutes,  as  amended  in  1844,  ch.  346,  §  4,  (3  B.  S. 
861,  5th  ed.)  have  declared  the  effect  of  the  statute  foreclosure,  when 
conducted  in  the  manner  prescribed  by  law,  and  when  the  purchase 
is  made  in  good  faith.  When  these  circumstances  concur,  it  is  de- 
clared to  be  equivalent  to  a  foreclosure  and  sale  under  the  decree  of 
a  court  of  equity,  so  far  only  as  to  be  an  entire  bar  of  all  claim  or 
equity  of  redemption  of  the  mortgagor,  his  heirs  and  representatives, 


138  STATUTORY  FORECLOSURE. 

and  of  all  persons  claiming  under  him  or  them,  by  virtue  of  any  title 
8ul)sc(|uent  to  such  mortgaj^e,  and  also  of  any  jierson  having  a  lien, 
by  any  judgment  or  decree  upon  the  land  or  any  part  thereof  con- 
tained in  such  mortgage,  subsequent  to  such  mortgage,  and  of  every 
person  having  any  lien  or  claim  by  or  under  such  subsequent  judg- 
ment or  decree,  who  shall  have  been  served  with  notice  of  said  sale 
as  required  by  law. 

The  revised  statutes,  as  originally  framed,  gave  less  effect  to  a  stat- 
ute foreclosure  than  the  existing  law.  A  party  whose  mortgage  of 
the  same  premisss,  or  any  part  thereof,  or  whose  title  accrued  prior 
to  such  sale,  and  a  creditor  to  whom  the  mortgaged  premises  or  any 
part  thereof  was  bound  before  such  sale,  by  any  judgment  at  law  or 
decree  in  equity,  was  not  prejudiced  by  such  sale,  nor  were  his  rights 
or  interests  in  any  way  alfeoted  thereby.  (2  11.  S.  546,  §  8.)  Un- 
der the  former  law,  the  purchaser  at  a  statute  foreclosure,  if  there 
were  judgments  subsequent  to  the  mortgage,  remaining  a  lien  upon 
the  property  at  the  time  of  the  sale  under  the  statute,  took  the 
whole  legal  and  equitable  interest  in  the  property  as  against  the 
mortgagor  and  all  persons  claiming  under  him  ;  subject,  liowever, 
to  the  equitable  right  of  the  judgment  creditor  to  redeem,  in  the 
same  manner  as  if  such  foreclosure  had  not  taken  place.  {Benedict 
V.  Gi'hnan,  4  Paige,  Gl.)  The  effect  of  the  statute  foreclosure  un- 
der that  act  was  to  transfer  to  the  purchaser  the  rights  of  the  mort- 
gagee, so  far  as  he  had  any  in  the  mortgaged  j)remises  as  a  security 
for  his  debt  ;  and  also  so  much  of  the  equity  of  redemption  as  was  not 
bound  by  the  lien  of  a  junior  mortgage  or  judgment.  {Vroom  v. 
Ditinos,  5  id.  526.)  As  a  necessary  consequence,  a  subsequent  in- 
cumbrancer had  no  claim  to  the  surplus  produced  by  a  sale  on  a 
statute  foreclosure,  as  his  lien  was  not  affected  by  the  proceeding. 
(  Waller  v.  Harris,  7  id.  167.) 

The  amendment  introduced  in  1844,  and  already  adverted  to,  re- 
quires a  notice  of  the  proceedings  to  be  served  on  the  subsequent 
grantees  and  mortgagees  of  the  premises  whose  conveyance  and  mort- 
gage shall  be  upon  record  at  the  time  of  the  first  publication  of  the 
notice,  and  upon  all  persons  having  a  lien  by  or  under  a  judgment 
or  decree  upon  the  mortgaged  premises,  subsequent  to  such  mort- 
gage, personally,  or  by  leaving  the  same  at  their  dwelling  house  in 
charge  of  some  person  of  suitable  age,  or  by  serving  a  notice  through 
the  post  'oflfice.     [See  ante,  51,  52.) 

These  requirements  of  the  statute  certainly  make  those  persons, 


NOIT -RESIDENT  MARRIED  WCMAK  130 

in  a  qualified  sense,  parties  to  the  proceeding,  and  justify  the  legis- 
lature in  giving  the  effect  to  the  foreclosure  mentioned  in  the  8th 
section.  But  the  statute  fails  to  make  any  suitable  provision  for 
the  rights  of  infants  or  other  persons  laboring  under  disability. 
{Demarest  v.  WynJcoop,  3  John.  Ch.  146.)  Nor  does  it  make  any 
provision  where  the  mortgagor  claims  that  the  security  is  invalid  for 
usury  or  any  other  cause.  If  there  be  any  just  legal  or  equitable 
defense  to  the  mortgage,  it  must  be  asserted  in  an  appropriate  action 
in  the  common  law  courts.  It  is  true,  indeed,  that  a  statute  fore- 
closure of  a  paid  mortgage  conveys  no  title,  though  the  sal-3  is  to  a 
honajide  purchaser.     {Cameron  v.  Eriohi,  5  Hill,  272.) 

In  general,  a  power  created  by  a  feme  covert  is  ineffectual  on  the 
ground  of  the  disability  of  coverture.  It  has  been  shown  that  a 
power  of  sale  in  a  mortgage  executed  in  1792,  by  a  person  under 
twenty-five  years,  is  void.  {Burnet  v.  Denniston,  5  John.  Ch.  35.) 
But  as  a  feme  covert  is  authorized  to  join  with  her  husband  in  a 
mortgage  of  her  own  land,  it  is  conceived  that  she  may  execute  a 
valid  power  of  sale.  She  can  convey  her  land  by  joining  with  her 
husband,  and  acknowledging  the  deed  before  a  proper  officer  on  a 
private  examination  apart  from  her  husband.  (1  Ji.  S.  758,  §  10. 
3  id.  53,  5fh  ed.) 

A  power  to  mortgage  includes  in  it  a  power  to  authorize  the  mort- 
gagee to  sell,  in  defoult  of  payment.  It  is  an  incident  to  the  power 
to  mortgage,  and  is  included  in  that  power.  ( Wilson  v.  Troup, 
7  John.  Ch.  25,  32.) 

With  respect  to  non-resident  parties,  the  revised  statutes  pro- 
vide that  when  any  married  woman,  not  residing  in  this  state,  shall 
join  with  her  husband  in  any  conveyance  of  any  real  estate  situated 
within  this  state,  the  conveyance  shall  have  the  same  effect  as  if  she 
were  sole ;  and  the  acknowledgment  or  proof  of  the  execution  of 
such  conveyance,  made  by  her,  may  be  the  same  as  if  she  were  sole. 
This  provision  was  adopted  at  an  early  day,  and  the  effect  was  to 
treat  a  non-resident /e?ne  covert,  with  respect  to  conveyances  of  her 
land,  as  if  she  were  sole ;  and  to  dispense  with  a  private  examination 
apart  from  her  husband.  (1  K.  &  R.  478,  §  2.  1  R.  S.  738,  §  11.) 
Her  title  to  dower  in  the  lands  of  her  husband  situated  in  this  state, 
as  well  as  her  title  to  lands  of  which  she  was  seised  in  her  own  rio-ht, 
was  thus  extinguished  in  the  one  case,  and  transferred  in  the  other 
in  a  manner  different  from  that  applicable  to  resident  femes  covert. 

But  the  statute  only  extended  to  actual  conveyances  ofrecbl  estate 


140  WHEN  WIFE  IS  AN  INFANT. 

situated  within  this  state.  It  did  not  embrace  powers  of  attorney 
for  the  conveyance  of  real  estate  situated  in  this  state,  the  necessity 
for  which  led  to  the  act  of  1835,  ch.  275.  By  that  statute  it  is 
enacted  that  when  any  married  woman  residing  out  of  this  state 
shall  have  joined  with  her  husband  in  executing  any  power  of  attor- 
ney for  the  conveyance  of  real  estate  situated  in  this  state,  the  cou- 
veyance  executed  by  virtue  of  such  power  shall  have  the  same  forco 
and  effect  as  if  executed  by  such  married  woman  in  her  own  i)ropcr 
person ;  provided  that  the  execution  of  such  i)ower  of  attorney,  by 
such  married  woman,  shall  first  have  been  duly  proved  or  acknowl- 
edged, according  to  the  provisions  of  the  revised  statutes  in  rela- 
tion to  conveyances  executed  by  married  women  residing  out  of  this 
state.     (3  R.  S.  59,  §  73,  5tU  ed.) 

If  the  wife  be  an  infant  under  the  age  of  twenty-one  years,  tho 
deed  as  to  her,  if  the  conveyance  be  of  her  property,  is  voidable 
only  and  not  void :  but  if,  in  &uch  case,  she  join  with  her  husband 
in  order  to  extinguish  her  dow*n-,  it  is  absolutely  void.  {Sherman 
v.  Garfidd,  1  Bcnio,  329.)  The  common  law  doctrine  that  a  woman 
during  coverture  cannot  alien  her  lands  by  deed,  never  prevailed  in 
this  state.  A  deed  therefore  of  real  estate,  executed  by  her  in  con- 
junction with  her  husband,  acknowledged  by  her  in  the  form  pre- 
scribed by  law,  is  valid.  But  when  she  is  an  infant  as  well  as  a  feme 
covert,  the  disability  arising  from  infancy  remains,  although  she  ex- 
ecute and  acknowledge  a  deed  in  the  form  prescribed  by  statute. 
(Bool  V.  Mix,  17  Wend.  119.) 

How  for  the  acts  of  1848  and  1849,  for  the  more  effectual  protec- 
tion of  the  property  of  married  women,  (L.  of  1848,  p.  307;  L.  of 
1849,  j9.  528,)  have  enabled  married  women  to  mortgage  their  sepa- 
rate estate,  and  thus  incidentally  to  dispose  of  it  through  the  power 
of  sale,  is  not  perhaps  yet  fully  settled.  The  original  act  of  1848 
does  not  confer  power  upon  the  feme  covert  to  devise  or  bequeath 
her  property  by  last  will  and  testament.  This  defect  was  reme- 
died by  the  act  of  1849.  ( Wadkams  v.  The  Am.  Home  Miss.  Soci- 
ety, 2  Kern.  425.)  And  it  would  seem  that  by  the  act  of  1849,  in 
respect  to  estates  acquired  and  held  under  the  protection  of  the  stat- 
ute, the  disabilities  of  coverture  are  in  fact  removed.  ( Tale  v.  Ded- 
erer,  4  Smith,  [18  N.  Y.  Rep^  271.)  It  would  seem,  therefore,  to 
follow,  that  a  married  woman  may  create  an  express  charge  on  her 
separate  estate,  in  the  same  manner  as  if  she  were  a,  feme  sole.  (Id.) 
The  act  of  1860,  ch.  90,  while  in  some  respects  it  enlarges  the  power 


FORECLOSURE  IN"  EQUITY.  I4I 

of  mairied  women,  interposes  checks  to  their  alienation  of  their  real 
property. 

Section  V. 

Of  foreclosure  in  equity;  and  herein  of  the  liens  on  real  estate. 

The  jurisdiction  of  the  supreme  court,  under  the  constitution  of 
184G,^  is  ample  over  the  subject  of  foreclosure,  whether  the  mortgage 
contain  a  power  of  sale  or  not,  or  whether  the  deed  be  absolute  in 
terms,  and  the  defeasance  as  a  mortgage  be  only  made  out  by  oral 
evidence.  If  the  mortgage  be  to  secure  unliquidated  damages,  or  if 
there  be  no  power  of  sale  in  the  mortgage,  it  can  only  be  foreclosed 
m  a  court  of  equity.  {Ferguson  v.  Kimball,  3  Barb.  Ch.  R.  616. 
Same  v.  Ferguson,  2  Conist.  360.) 

There  are  two  modes  of  foreclosure  ;  1,  a  strict  foreclosure;  2,  a 
foreclosure  and  sale  under  a  decree  of  the  court. 

1.  A  strict  foreclosure  is  not  of  frequent  recun-ence.  It  usually 
happens  when  the  mortgagee  is  in  possession  and  he  wishes  the 
equity  of  redemption  of  the  mortgagor  to  be  barred.  {Bell  v  Tlie 
Mayor  of  New  York,  10  Paige,  49.)  On  a  decree  for  a  strict  fore- 
closure, the  mortgagor  has  no  riglit  to  redeem  after  the  day  fixed  for 
that  purpose  in  the  decree,  and  the  lands  become  the  absolute  prop- 
erty of  the  mortgagee.  It  is  said  there  can  be  no  valid  strict  fore- 
closure against  an  infant  heir  of  the  mortgagor,  {llins  v.  Den7iis, 
3  John.  Ch.  367.)  A  purchaser  under  a  statute  foreclosure  may  file 
a  bill  for  a  strict  foreclosure,  against  junior  incumbrancers  having  a 
right  to  redeem.     {Benedict  v.  Gilman,  4  Paige,  58.) 

On  a  strict  foreclosure,  if  the  mortgagor  redeem,  the  mortgao-ee 
must  account  for  the  rents  and  profits  received  subsequent  to  the 
decree.     {Ruekman  v.  Astor,  9  Paige,  517.) 

At  law  it  is  well  settled  that  a  foreclosure  of  the  mortgage  is  no 
bar  to  an  action  on  the  attendant  bond.     {Hatch  v.  White,  2  GaUi- 

S  }f^  ^°  '^'  '"''  '^  ^^''  ^^'^'  ^^^-  ^^-  ^-  ^"^^'^^9,  (5  Cowen, 
6W,)  the  question  was  whether  a  foreclosure  of  the  mortgage  and  a 
sale  under  it,  operated  as  an  extinguishment  of  the  debt,  and  it  was 
there  he  d  that  it  was  an  extinguishment  no  further  than  the  amount 
produced  by  such  sale.  The  same  point  was  so  decided  in  the  court 
for  the  correction  of  errors,  in  the  case  of  Lansing  v  Godlet 
0(^.e.,346  403.)  At  the  October  term  of  the  supreme  court; 
1829,  It  was  held  that  the  foreclosure  of  the  mortgaged  premises  with- 


142  FORECLOSURE  AND  SALE. 

out  a  sale  did  not  operate  as  an  extinguishment  of  the  debt,  unless 
it  was  averred  and  proved  that  the  mortgaged  premises  were  of  suf- 
ficient value  to  i)ay  the  debt.  (Spencer  v.  Uarford,  4  Wend.  384. 
Morgan  v.  Plumb,  9  Wend.  287.) 

2.  The  other  mode  is  by  foreclosure  and  sale  under  the  decree. 
This  is  the  usual  and  preferable  mode  for  all  jtarties.  The  object 
in  all  cases  of  this  kind  is,  or  should  be,  to  make  the  fund  set  apart 
for  the  payment  of  the  debt  available  for  that  purpose,  and  to  re- 
turn the  surplus,  if  there  be  any,  to  the  mortgagor,  or  those  who 
have  succeeded  to  his  rights.  For  this  purpose,  not  only  the  parties 
to  the  mortgage  are  made  parties  to  the  action,  but  all  persons  hav- 
ing liens  on  the  mortgaged  premises,  by  mortgage  or  judgment,  at 
the  time  of  commencing  the  suit.  No  one  can  be  bound  by  the  de- 
cree who  has  not  been  made  a  party  to  the  action.  A  junior  in- 
cumbrancer may  desire  to  redeem,  and  he  should  have  the  opportu- 
nity. And  there  are  various  reasons  why  prior  incumbrancers  should 
also  be  included.  The  ])urchaser  can  thus  be  enabled  to  acquire  a 
title  good  against  all  the  world ;  and  a  multiplicity  of  suits  is 
avoided  by  bringing  all  before  the  court  at  once. 

Prior  to  1830,  the  mortgagee  might  pursue  his  remedy  at  law  by 
action  on  the  bond  or  other  security,  by  action  of  ejectment  to  be 
let  into  possession  of  the  mortgaged  premises,  and  by  bill  in  equity 
to  foreclose.  {Dunhly  v.  Van  Bttre7i,  3  John.  Ch.  330.  Hughes  v. 
Edward,  9  Wheat.  489.) 

This  was  often  oppressive,  and  always  attended  with  great  ex- 
pense. But  now,  by  the  revised  statutes,  the  action  of  ejectment 
upon  a  mortgage  is  abolished.  (2  R.  S.  312,  §  57.)  If  the  credit- 
or proceeds  at  law  to  recover  the  debt  secured  by  the  mortgage,  he 
is  forbidden  to  sell  under  his  execution  the  equity  of  redemption 
in  the  mortgaged  premises.  And  in  order  to  guide  the  sheriflf  in 
this  respect  the  plaintiff's  attorney  is  required  to  make  an  endorse- 
ment on  the  execution,  giving  a  brief  description  of  the  mortgaged 
premises,  and  directing  the  sheriff  not  to  sell  them.  (2  B.  S.  368, 
§§  31,  32.  Delaplaine  v.  Hitchcock,  6  Hill,  14.)  If  the  mortgagee 
proceeds  in  equity  to  foreclose,  no  proceedings  are  thereafter  to  be 
had  at  law,  without  leave  of  the  court.  The  court  of  equity  has 
power  to  decree  a  sale  of  the  mortgaged  premises,  or  of  so  much 
thereof  as  may  be  necessary  to  discharge  the  amount  due  on  the 
mortgage  and  the  costs  of  the  suit.  It  has  power  not  only  to  com- 
pel the  delivery  of  the  possession  of  the  mortgaged  premises  to  the 


WHERE  MORTGAGE  HAS  NO  POWER  OF  SALE.  143 

purchaser,  but  to  direct  the  payment  by  the  mortgagor  of  any  bal- 
ance of  the  mortgage  debt  that  may  remain  unsatisfied  after  a  sale 
of  the  premises  in  the  cases  in  which  such  balance  is  recoverable  at 
law ;  and  for  that  purpose  to  issue  the  necessary  executions,  as  in 
other  cases,  against  other  property  of  the  mortgagor,  or  against  his 
person.  (2  R.  S.  191,  §§  151,  152.)  If  the  mortgage  debt  be  se- 
cured by  the  obligation  or  other  evidence  of  debt  executed  by  any 
other  person  besides  the  mortgagor,  such  person  may  be  made  a 
party  to  the  action,  and  payment  of  any  balance  remaining  after 
sale  of  the  mortgaged  premises  may  be  decreed  as  well  against  such 
other  person  as  the  mortgagor.  {Id.  §  154.  Leonard  v.  Morris, 
9  Faige,  90.) 

There  are  numerous  cases  where  a  court  of  equity  affords  the 
only  remedy  for  the  mortgage  creditor.  That  is  the  case  when  the 
instrument  contains  no  power  of  sale,  or  when  the  deed  is  absolute  iu 
terms  and  is  shown  by  parol  proof  to  have  been  intended  as  a  mort- 
o-ao-e.  The  mortgaged  premises  cannot  be  sold  in  any  such  case  on 
default  of  the  mortgagor,  without  a  decree  in  a  foreclosure  suit. 
{Hart  V.  Ten  Eyclc,  2  John.  Ch.  G2.)  So  also,  when  the  mortgage  is 
o-iven  to  secure  the  performance  of  covenants  or  other  thing  than  the 
payment  of  money.     {Ferguson  v.  Ferguson,  2  Comst.  360.) 

Cases  often  arise  where  there  are  successive  mortgages  on  the  same 
premises.  They  may  become  due  at  different  times ;  and  may  each 
cover  some  premises  not  common  to  the  other.  But  a  court  of  equity 
can  so  mould  the  remedy  as  to  do  justice  to  all,  and  to  prevent  any 
one  from  squandering  the  fund  intended  for  the  benefit  of  the 
others  also. 

A  subsequent  mortgagee  may  file  a  bill  to  redeem  a  prior  mort- 
gage, and  for  a  foreclosure  and  sale  on  both  ;  or  if  the  prior  one  be 
not  due,  for  a  sale  subject  to  it.  {Tlie  Western  Ins.  Co.  v.  The 
Eagle  Ins.  Co.  1  Paige,  284.) 

But  it  is  not  always  necessary  that  the  junior  mortgagee  should 
offer  to  redeem  the  prior  mortgage.  He  may,  without  such  offer, 
file  a  bill  of  foreclosure  and  sale,  and  for  payment  of  all  incumbrances 
thereon  out  of  the  proceeds.  ( Vanderkempt  v.  Shelton,  11  Paige,  28.) 

An  equity  of  redemption  is  in  some  respects  similar  to  a  trust 
estate.  The  legal  seisin  is  in  its  owner.  He  may  alien  it,  devise 
it  by  Mali,  and  it  is  descendible  to  his  heirs  at  law.  It  may  be  mort- 
gaged. But  a  mortgage  of  this  kind,  usually  called  a  second  mort- 
gage, is  seldom  recommended  by  English  conveyancers,  for  two  reasons : 


144  EQUITY  OF  REDEMPTION. 

1.  Because  a  third  mortgagee,  loithout  notice,  may,  by  paying  off  tho 
first  mortgage,  acquire  a  preference  over  the  second.  2.  Because 
great  difficulties  may  arise  in  calHng  in  the  money ;  for  as  a  second 
mortgagee  has  no  legal  remedy,  he  is  driven  to  a  bill  in  equity  to  re- 
cover even  his  interest.  These  reasons  are  not  a])plicable  in  this 
state.  The  first  arises  out  of  the  doctrine  of  tacking  which  is  super- 
seded in  this  state  by  our  recording  laws.  {Crabhe's  Laiu  of  Heal 
Property,  §  2256.)  Each  security  is  to  be  paid  off  according  to  its 
priority.  {McKinstry  v.  Mervin,  3  JoJm.  Ch.  466.)  The  recording 
of  the  security  is  notice  to  all  the  world ;  and  hence  a  third  mort- 
gagee cannot,  by  purchasing  the  fii'st  mortgage,  squeeze  out  the 
second.  The  other  objection  to  a  second  mortgage,  that  the  holder 
of  it  is  driven  into  equity  for  redress,  applies  in  this  state  to  all 
mortgages  ;  it  being  the  evident  policy  of  our  law  to  adjust  the  rights 
of  the  parties  in  all  cases  in  a  court  of  equity.  The  principal  objec- 
tion to  a  second  mortgage  is  that  unless  the  security  is  abundantly 
ample,  the  mortgagee  may  be  compelled  to  take  the  premises  and 
pay  off  the  first  mortgage,  or  hunt  up  a  purchaser  who  will  take  the 
premises  and  pay  off  both. 

The  owner  of  the  equity  of  redemption  in  the  mortgaged  premises 
is  a  necessary  party  to  an  action  for  the  foreclosure  of  the  mortgage. 
Where,  therefore,  the  mortgagor  has  conveyed  his  equity  of  redemp- 
tion to  another,  no  suit  in  equity  can  be  instituted  against  the  mort- 
gagor for  the  payment  of  the  mortgage  debt,  without  making  the 
grantee  of  the  equity  of  redemption  a  party.  (Eeed  v.  Marble,  10 
Faige,  409.) 

An  equity  of  redemption  is  subject  to  the  curtesy  of  the  husband. 
{Casborne  v.  Scai/c,  1  Atk.  603,  a7id  see  ante.)  It  is  also  sub- 
ject to  the  dower  of  the  wife  against  all  but  the  mortgagee  or  those 
claiming  under  him.  {Collins  v.  Torry,  7  John.  278.  Coles  v. 
Coles,  15  id.  319.  Van  Dayne  v.  ThaTjre,  14  Wend.  233,  19 
id.  162.) 

As  the  whole  of  a  man's  estate,  whether  it  be  real  or  personal,  is,  on 
his  death,  liable  to  the  payment  of  his  debts,  the  equity  of  redemp- 
tion may  be  sold  for  that  purpose,  under  appropriate  proceedings, 
and  the  purchaser  become  the  owner  of  it  subject  to  the  mortgage. 
{Willard  on  Ex'rs,  323.) 

Any  subsequent  incumbrancer,  whether  by  judgment  or  mortgage, 
has  a  right  to  redeem.  In  case  premises  are  sold  under  a  junior  in- 
cumbrance, the  purchaser  of  the  mere  equity  of  redemption  is  pre- 


WHEN  PROPERTY  CANNOT  BE  SOLD  IN  PARCELS.         145 

sumed  only  to  bid  to  the  value  of  such  equity  of  redemption  beyond 
the  amount  of  the  previous  specific  liens  upon  the  premises.  He 
takes  the  property,  therefore,  subject  to  those  liens ;  and  the  prop- 
erty becomes  the  primary  fund  for  the  discharge  of  those  liens. 
Equity  will  not  permit  such  purchaser  to  keep  the  land,  at  the  price 
thus  bid,  and  resort  to  the  personal  liability  of  the  mortgagor  to  satisfy 
the  amount  of  such  specific  lien.  If,  in  such  a  case,  the  mortgagor 
is  compelled  to  pay  the  prior  mortgage,  he  will,  in  equity,  be  sub- 
rogated to  the  rights  of  the  first  mortgagee,  and  will  have  the  right 
to  an  assignment  of  such  prior  bond  and  mortgage,  to  enable  him 
to  leimburse  himself  from  the  fund  in  the  hands  of  such  purchaser 
of  the  mortgaged  premises.  (  Vanderkem})  v.  Shelton,  11  Paige,  28. 
Tice  v.  Annin,  2  John.  Ch.  128.     Heyer  v.  Pruyn,  7  Paige,  470.) 

The  New  York  statute,  we  have  seen,  authorizes  the  court  to  de- 
cree a  sale  of  the  mortgaged  premises,  whether  the  mortgage  contains 
a  power  of  sale  or  not,  and  to  direct  the  payment  of  the  unsatisfied 
balance,  when  such  balance  would  be  recoverable  at  law.  It  thus 
accomplishes  the  whole  in  one  action.  Various  questions  arise  in 
the  exercise  of  the  powers  of  the  court  in  these  cases,  which  have 
generally  been  settled  upon  wise  and  comprehensive  principles  of 
natural  equity.  "Thus,  where  the  ruortgaged  premises  are  incapable 
of  being  sold  in  parcels,  or  of  being  divided  without  injury,  the  whole 
may  be  sold,  though  the  whole  debt  is  not  due  ;  and  the  proceeds 
applied  to  pay  the  interest  and  costs,  and  the  surplus  to  the  princi- 
pal of  the  debt.     {Campbell  v.  Macomb,  4  John.  Ch.  534.) 

Sometimes  it  is  not  necessary  to  anticipate  the  whole  debt  on  the 
sale  for  an  installment,  in  which  case  a  provision  should  be  made  to 
render  further  litigation  unnecessary.  Thus,  when  the  interest  on 
a  mortgage  is  payable  annually,  and  the  principal  at  a  future  period, 
on  a  bill  for  a  foreclosure  and  sale  for  the  non-payment  of  the  inter- 
est, the  whole  subject  is  usually  brought  before  the  court  on  the  re- 
port of  a  master  under  the  former  practice,  or  of  a  referee  under  the 
present  mode,  as  to  the  situation  of  the  premises,  and  whether  they 
can  be  sold  in  parcels  or  not,  and  stating  such  other  facts  as  may  be 
essential  to  aid  the  court  in  its  determination  of  the  matter  ;  when 
the  whole  or  a  part  of  the  mortgaged  premises  will  be  sold,  as  the 
court  may  deem  just  and  necessary.  In  case  it  be  unnecessary  to 
sell  the  whole,  the  decree  of  sale  and  foreclosure  will  stand  as  further 
security  for  the  payment  of  future  installments  of  principal  and  in- 
terest, as  they  become  due.     An  order  will  be  obtained,  from  time 

Will.— 10. 


14C  ORDER  OF  SALES. 

to  time,  for  future  sales,  on  the  foot  of  the  decree,  and  obtaininpf  a 
further  report  of  the  amount  due.  {^Brinkcrhoff  v.  21iall/iimcrj 
2  John.  Ch.  486.     Lyman  v.  Sale,  2  id.  487.) 

We  have  already  alluded  to  cases  where  the  land  becomes  the 
primary  fund  for  the  payment  of  the  debt  secured  by  mortgage. 
Though,  in  general,  the  debt  is  the  principal  and  the  mortgage  the 
incident,  or  the  security,  the  parties  may  by  their  dealings  reverse 
this  order;  in  which  cases  equity  compels  the  parties  to  their  agree- 
ment. This  is  sometimes  by  express  agreement.  Where  land  is 
expressly  conveyed,  subject  to  a  mortgage  thereon,  the  land  is  the 
primary  fund,  as  between  the  grantor  and  grantee,  and  those  deriv- 
ing title  from  the  grantor,  for  the  ])ayment  of  the  mortgage  debt. 
(Jumel  V.  Jumelj  7  Paige,  591.)  On  the  same  principle,  where  a 
mortgagor  sells  part  of  the  land  subject  to  the  whole  mortgage,  the 
part  sold  is  liable  primarily  for  the  mortgage  debt,  and  the  personal 
estate  of  the  deceased  grantee  is  liable  only  for  the  deficiency.  {liai- 
se i/  V.  Heed,  9  id.  446.) 

It  is  often  an  important  in({uiry  to  ascertain  the  order  in  which 
successive  inurtgagcs  shall  be  j)aid  off,  where  the  j)remises  chargetl 
by  the  mortgage  have  been  sold  at  different  times  and  to  different 
parties.  The  general  rule  is  that  the  different  })arct*l8  should  bo 
charged  with  the  incumbrance  in  the  inverse  order  of  their  aliena- 
tion. {Cloioes  V.  Dickinson,  5  John.  Ch.  235.  Schrjjver  v.  Teller, 
9  Paige,  173.)  The  principle  is  the  same  where  there  are  general 
liens  upon  the  whole  land,  and  subsequent  mortgages  on  the  parcels, 
the  general  liens  are  primarily  chargeable  on  the  parcels  in  the  in- 
verse order  of  their  being  mortgaged.     {Schryvcr  v.  Teller,  supra.) 

So  when  lands  belonging  to  several  persons  are  covered  by  a  mort- 
gage given  by  one  from  whom  they  all  derive  their  title,  the  several 
parcels  must  be  sold  in  the  inverse  order  of  their  alienation.  And 
where  the  purchase  money  has  been  paid  in  good  faith,  the  first  pur- 
chaser has  the  prior  equity,  although  the  consideration  was  not  ac- 
tually paid  until  other  portions  had  been  actually  purchased  and 
paid  for.     {Grosevenor  v.  Lynch,  2  Paige,  300.) 

The  same  doctrine  applies  where  mortgaged  premises  are  sold  sub- 
sequent to  the  date  of  the  mortgage  to  different  purchasers ;  such 
parcels,  upon  a  foreclosure  of  the  mortgage,  are  to  be  sold  in  the 
inverse  order  of  their  alienation,  according  to  the  equitable  rights 
of  the  different  purchasers,  as  between  themselves.  (Guion  v.  Knajjp, 
6  Paige,  35.    Snyder  v.  Stafford,  11  id.  71.     The  New  York  Life 


MODE  OF  COMPUTING  INTEREST.  147 

Ins.  and  Trust  Co.  v.  Milnor,  1  Barh.  Ch.  353.     Stuyvesant  v.  Hallj 
2  id.  151.     Skeel  v.  Spraker,  8  Paige,  182.) 

Under  this  head  o^ foreclosure  and  sale,  the  question  often  arises 
as  to  the  mode  of  computing  interest  on  the  security,  and  which  must 
necessarily  be  settled  by  the  court,  when  it  pronounces  the  decree. 
It  is  a  general  rule  that  interest  upon  interest,  or  compound  interest, 
is  never  allowed;  except  in  special  cases,  or  when  there  is  a  settle- 
ment of  accounts  between  the  parties  after  interest  has  become  due, 
or  there  has  been  an  agreement  for  that  purpose  subsequent  to  the 
original  contract,  or  a  master's  report,  computing  the  amount  of  prin- 
cipal and  interest  has  been  confirmed.  {The  State  of  Connecticut  v. 
Jackson,  1  John.  Ch.  13.  Van  Benschoten  v.  Laioson,  6  id.  313. 
Toll  V.  Hiller,  11  Paige,  328.)  Though  an  agreement  in  advance, 
to  pay  interest  upon  interest,  is  not  usurious,  still  it  cannot  be  en- 
forced. An  agreement  to  pay  interest  on  interest  which  has  accrued, 
is  valid.  {Moiory  v.  Bishox),  5  Paige,  98.)  If  com[)Ound  interest 
is  voluntarily  paid,  it  cannot  be  recovered  back.  {Id.)  But  other- 
wise when  paid  ignorantly,  upon  the  faith  of  a  calculation  made  by 
a  third  person.     {Boyer  v.  Park,  2  Dcnio,  107.) 

The  improvements  of  modern  times  have  given  rise  to  modes  of 
acquiring  and  transferring  propert  v,  and  of  securing  debts  by  mort- 
gages thereon,  not  contem})Iated  in  the  early  stages  of  the  common 
law.  Rail  roads  could  never  have  been  constructed,  upon  an  exten- 
sive scale,  but  by  an  aggregation  of  capital  in  corporate  hands ;  and 
the  necessary  real  estate  could  never  have  been  acquired  without  the 
aid  afforded  by  government  by  the  qualified  assignment  of  its  right 
of  eminent  domain.  {Beekman  v.  Saratoga  and  Schenectady  Rail 
Boad  Co.  3  Paige,  45.  Polly  v.  Saratoga  and  Washington  Rail 
Road  Co.  9  Barh.  449.  Adams  v.  Same,  11  id.  414.  4  Seld.  5S, 
remarks  in  do.)  Nor  could  the  requisite  funds  have  been  borrowed 
but  by  occasionally  mortgaging  the  real  estate  and  franchises  of  the 
corporation.  In  this  state,  the  mode  of  acquiring  the  real  estate 
essential  for  the  purposes  of  the  corporation,  when  the  parties  fail 
to  agree,  is  pointed  out  in  the  general  act  relative  to  rail  road  cor- 
porations, and  the  acts  amending  the  same.  {Act  of  1850,  ch.  140; 
1851,  ch.  19  ;  1853,  ch.  53 ;  1854,  ch.  282.)  Among  the  powers 
of  the  corporation  formed  for  this  purpose,  is  that  of  borrowing 
such  sums  of  money  as  may  be  necessary  for  completing  and  finish- 
ing, or  operating  their  rail  road,  and  to  issue  and  dispose  of  their 


148         RIGHT  OF  RAIL  ROAD  TO  MORTGAGE  FRANCHISE. 

bonds  for  any  amount  so  borrowed,  and  to  mortgage  their  corporate 
property  and  franchises  to  secure  the  payment  of  any  debt  contracted 
by  the  company,  for  the  purposes  aforesaid.  {Laws  of  1850,  §  28, 
sub.  10,  p.  225.) 

The  usual  mode  is  for  the  corporation,  after  determining  upon  the 
terms  of  the  proposed  loan,  to  execute  a  mortgage  of  its  real  estate 
and  track,  by  a  description  sufficiently  definite  to  identify  it,  together 
with  its  franchises,  to  one  or  more  gentlemen  in  trust  for  the  bond- 
holders, by  whom  the  money  is  advanced.  The  mortgage  must  be 
proved  or  acknowledged  in  due  form,  and  recorded  in  the  several 
counties  through  which  the  road  is  laid.  It  prescribes  the  time  and 
manner  of  payment.  [Seymour  v.  TJie  Canandaigua  and  Niagara 
B.R.  25  Barb.  284.) 

The  franchise  of  the  corporation  thus  allowed  to  be  mortgaged  is 
the  attribute  of  continual  succession,  derived  from  the  charter  ;  the 
right  to  have  a  name  and  common  seal ;  to  sue  and  be  sued  ;  to 
make  by-laws  ;  to  have  capacity  to  transact  business,  &c.  (1  B.  S. 
599.)  These  are  the  common  law  attributes  of  a  corporation  ;  and 
are  expressly  declared  by  statute  to  be  applicable  to  the  corpora- 
tions in  this  state.  By  authorizing  the  corporation  to  mortgage  this 
franchise,  the  statute,  in  effect,  authorizes  a  transfer  of  it  to  the 
purchasers,  on  the  sale  under  the  foreclosure  of  the  mortgage.  The 
latter  thus  become  the  owners  of  the  property,  with  all  its  corporate 
privileges. 

It  is  competent  for  a  rail  road  to  mortgage  its  real  estate,  track 
and  fixtures,  without  its  franchises.  (Farmers'  Loan  and  Trust 
Co.  V.  Hendrickson,  25  Barb.  484,  ivhere  the  rolling  stock  was  held 
to  be  fixtures  of  the  road.)  In  such  a  case  the  purchaser,  on  a  fore- 
closure sale,  could  acquire  nothing  not  embraced  in  the  mortgage. 
Brima  facie,  the  real  estate  and  franchises  would,  in  such  a  case, 
be  separated  from  each  other,  and  be  of  little  value  to  any  one. 
The  act  of  1854,  amending  the  general  act,  provides  for  such  a  case, 
and  authorizes  the  purchaser  or  purchasers  and  their  associates  to 
make  and  acknowledge  and  file  articles  of  association,  as  prescribed 
by  the  general  act,  and  thereupon  to  be  a  corporation,  with  all  the 
powers,  privileges  and  franchises,  and  be  subject  to  all  the  provisions 
of  the  act.  {Laios  of  1854,  §  5,  p.  608.)  There  are  some  advan- 
tages in  forming  a  new  corporation  with  the  property  acquired  by 
such  purchase  ;  a  new  name  can  be  taken.  It  is  presumed  that  this 
course  can  be  adopted,  even  if  the  franchise  be  mortgaged  with  the 


CORPORATION^  NOT  DISSOLVED  BY  SALE.  I49 

track  and  other  property  ;  and  it  is  the  only  remedy  where  the  fran- 
chise was  not  included  in  the  mortirao-e 

A  corporation  is  not  ipso  facto  dissolved  by  the  sale  of  its*prop- 
erty,  effects  and  charter.  (  Wilde  v.  JenJcins,  4  Paige,  481.  Mick- 
les  V.  The  Rochester  Citij  Bank,  11  id.  118.  The  People  v.  3Iau- 
ran,  5  Benio,  389.)  Some  action  of  the  courts,  decreeing  a  dissolu- 
tion, is  required  for  that  purpose.  But  the  title  of  the  purchaser 
in  good  faith,  under  the  foreclosure  and  sale,  will  not  be  affected  by 
the  subsequent  action  of  the  courts  against  the  original  corporation. 
The  decree  of  foreclosure  of  a  mortgage  of  a  rail  road  and  its  fran- 
chises usually  makes  provision  for  the  purchase  by  some  one  in  trust 
for  the  bondholders,  in  case  other  purchasers  should  not  bid  a  larger 
sura.  The  sale  in  such  a  case  does  not  take  place  under  a  power  of 
sale,  but  by  virtue  of  the  decree  of  the  court. 

The  effect  of  a  foreclosure  sale  is  to  cut  off  all  liens,  whether  by 
judgment,  mortgage  or  otherwise,  which  accrued  subsequent  to  the 
mortgage  under  which  the  sale  is  made.  The  creditors  at  large  of 
the  company  have  no  remedy  against  the  purchaser  under  the  fore- 
closure sale,  or  against  the  new  company  to  be  formed.  Their  rem- 
edy exists  against  the  old  company,  which  they  may  pursue  tojudo-- 
ment.  ^  The  incumbrances  on  the  road  must  b^  paid  off  according 
to  their  priorities. 

The  legislature  in  this  state  has  provided  for  the  taking  the  lands 
of  mdividuals  for  the  purpose  of  constructing  plank  roads  and  turn- 
pike roads.  {L.  of  1847,  ch.  210.)  The  general  act  does  not  author- 
ize those  companies  to  mortgage  their  roads  or  their  franchises  for 
the  security  of  their  creditors.  But  the  legislature  have  repeatedly, 
by  special  acts,  authorized  such  companies  to  borrow  money,  on  the 
bond  of  their  officers,  and  in  some  instances  have  created  a  lien 
upon  the  road  as  a  security,  for  such  indebtedness.  {L.  of  1851,  c?i. 
IS,  p.  15.)  They  have  in  other  instances  authorized  the  officers  of 
the  road  to  mortgage  their  corporate  rights  and  franchises  for  a  lim- 
ited amount,  and  provided  that  on  a  sale  by  virtue  of  a  foreclosure 
of  the  mortgage,  the  corporate  rights  and  franchises  of  the  road 
should  vest  in  the  purchasers,  and  that  the  corporation  should  not 
be  deemed  thereby  dissolved.     {L.  of  1851,  p.  165.) 

As  these  different  roads  are  usually  provided  for  by  separate  and 
often  conflicting  legislation,  it  is  not  deemed  expedient  to  collect 
and  arrange  the  several  acts.  We  have  only  attempted  to  state  the 
general  usage  in  the  case  of  foreclosures  and  sale. 


150  MECHANICS   LIENS. 

There  is  another  class  of  liens,  which  have  been  created  by  the 
legislature  in  favor  of  certain  mechanics,  at  first  in  some,  but  now 
in  all -of  the  counties  of  the  state,  for  which  the  conveyancer  must 
make  search  if  he  wishes  to  secure  for  his  client  an  unincumbered 
title.  These  various  acts  are  collected  in  the  third  volume  of  the 
revised  statutes,  5th  edition,  from  i)age  802  to  828.  It  will  be  seen 
that  the  provisions  of  the  act  of  April  17,  1854,  page  1086,  are  ex- 
tended and  declared  to  be  applicable  to  all  the  counties  of  this  state, 
except  the  counties  of  New  York  and  Erie,  [L.  of  1858,  p.  324,) 
for  which  provision  had  already  been  made. 

These  lien  laws  have  been  confined  to  the  subjects  named  in  the 
act,  and  therefore,  when  the  provisions  of  the  act  authorizing  a  lien 
in  favor  of  mechanics  for  work  performed  towards  the  erection,  con- 
struction or  finishing  of  buildings,  it  was  held  that  they  did  not 
apply  to  the  flagging  of  side  walks,  yards,  and  areas  of  buildings,  iu 
the  process  of  erection.     {McDermott  v.  Palmer j  4  Selden,  383.) 

These  statutes  have  given  rise  to  numerous  questions,  and  still 
more  will  constantly  arise.  It  is  not  possible  for  any  legislation  so 
novel  in  its  character,  to  be  perfect  at  once,  or  to  attain  the  objects 
which  its  framers  had  in  view.  One  object  of  these  laws  is  to  enable 
the  mechanic  doin^  labor  on  a  building  erected  under  a  contract 
with  the  owner,  to  reach  the  fund  due  from  the  owner  to  the  con- 
tractor. The  remedy,  say  the  court,  which  the  statute  gives,  is 
against  money  due  to  the  principal  contractor  for  the  work  which  he 
agreed  to  do,  but  which  the  subcontractor  or  mechanic  has  actually 
performed  for  him.  It  does  not  extend  to  money  payable  to  the 
contractor  on  any  other  account.  It  is  quite  reasonable  that  the 
party  meritoriously  entitled  to  be  paid  for  the  work  should  be  allowed 
to  intervene  between  the  owner  for  whom  a  house  was  built  and  the 
person  who  had  contracted  to  build  it,  and  to  divert  the  course  of 
the  payments,  which  would  have  passed  into' the  hands  of  such  con- 
tractor, to  his  own.  It  is  a  form  of  equitable  subrogation,  regulated 
by  statute,  but  it  is  limited  to  the  plain  case  of  money  due  upon  a 
contract  for  performing  the  work.  (Loonie  v.  Hogan,  5  Seld.  440, 
per  Denio,  J.) 

Hence,  when  the  owner  of  a  lot  in  the  city  of  New  York  contracted 
with  a  purchaser  to  convey  the  lot  to  him  for  a  certain  sum,  and  to 
loan  him  money  in  installments  for  the  erection  of  a  building  thereon, 
the  price  of  the  money  lent  to  be  secured  by  bond  and  mortgage 
upon  the  premises  at  the  completion  of  the  building,  at  which  time 


LIEN  OF  JUDGMENTS.  151 

the  lot  was  to  be  conveyed,  it  was  held  that  the  seller  of  the  lot  was 
not  "the  owner  of  the  building,"  within  the  meaning  of  the  me- 
chanics' lien  act,  although  it  was  erected  on  lands  of  which  he  had 
the  legal  title.  The  persons  furnishing  materials  for  such  building 
could  not,  under  that  statute,  compel  payment  for  those  materials 
out  of  the  money  agreed  to  be  advanced  by  the  seller  to  the  pur- 
chaser.    (Id.) 

Under  the  act  of  July,  1851,  ch.  513,  which  relates  to  the  city 
and  county  of  New  York,  and  which  superseded  the  prior  laws  on 
the  subject,  the  notice  of  the  claim  must  be  filed  within  six  months 
after  the  performance  of  the  labor  or  the  furnishing  of  the  materials 
by  the  contractor,  subcontractor,  laborer,  or  person  furnishing  the 
materials.  (Id,  §  6.)  The  filing  of  this  notice  in  the  proper  office 
is  the  commencement  of  the  lien,  and  it  cannot  be  created  in  any 
other  way.     {Donaldson  v.  O'Connor,  1  Smith's N.  York  C.P.  695.) 

The  lien  thus  created  does  not  continue  after  one  year  has  elapsed 
from  the  filing  of  the  claim,  unless  in  the  mean  time  proceedings  are 
instituted  for  its  enforcement ;  in  which  latter  case  it  continues  un- 
til judgment.     [Laios  o/*  1851,  §§  11,  12,  p.  956.) 

A  variety  of  questions  have  arisen  under  the  above  act,  many  of 
them  have  been  ably  discussed  and  decided  in  tlje  New  York  com- 
mon pleas,  but  they  do  not  appertain  to  the  subject  of  this  treatise. 
(See  Smith's  Reports,  N.  Y.  Common  Pleas.) 

There  are,  in  several  of  the  other  states,  similar  laws  giving  a  lien 
to  certain  mechanics  and  material  men  for  work  and  labor  and  for 
materials  found  in  the  construction  and  repairing  of  buildings. 
These  statutes  have  led  to  some  litigation,  but  the  questions  involved 
do  not  fall  within  the  scope  of  this  work. 

There  is  another  species  of  lien  on  real  estate  more  general  in  its 
nature,  arising  from  the  judgment  of  the  court,  and  it  is  regulated 
in  this  state  by  statute.  It  does  not  of  itself  transfer  the  title  of  the 
lands  bound  by  it,  or  destroy  the  seisin  of  the  defendant.  {Sedg- 
wich  V.  Hallenhech,  7  John.  376.)  It  will  attach  on  lands  of  which 
the  judgment  debtor  becomes  seised  at  any  time  after  the  judgment, 
unless  his  seisin  was  instantaneous,  or  departed  from  him,  eo  in- 
stanti  that  he  acquired  it.  {Per  Spencer  J.  in  Stow  v.  Tiffit,  15 
John.  459,  464.)  At  law  a  judgment  cannot  attach  upon  a  mere 
equity,  {Jackson  v.  Chapin,  5  Cowen,  485,)  nor  in  equity  upon  a 
mere  legal  title,  when  the  purchaser  under  it  has  notice  of  the  equi- 
table title.     {Ells  V.  Tousley,  1  Paige,  280.) 


152  l-IEN  BY  JUDGMENT. 

The  suLject  of  judgments  and  their  effect  as  liens  was  very  fully 
considered  by  the  chancellor,  in  Buclian  v.  Sumner,  (2  Barb.  Ch. 
193  et  seq.)  Previous  to  the  revised  statutes  of  1830,  he  observes, 
a  judgment  in  a  court  of  record  in  this  state  was  a  lien  upon  the 
lands  of  the  judgment  debtor  from  the  time  of  the  entry  of  such 
judgment,  whether  docketed  or  not.  But  by  the  statute  then  in 
force,  if  the  judgment  was  not  properly  docketed,  it  did  not  affect 
the  lands  of  the  judgment  debtor,  as  against  subsequent  purchasers 
or  mortgagees.  (1  B.  L.  of  1813,  p.  501,  §  13.)  Even  as  to  them, 
however,  the  undocketed  judgment  was  entitled  to  priority  in  equity, 
if  the  purchaser  or  mortgagee  had  notice  of  its  existence  at  the  time 
of  his  purchase,  or  when  he  took  his  mortgage.  {Davis  v.  The  Earl 
of  Stratfstnore,  16  Ves.  420.)  That  statute  made  no  provision  for 
priority  in  favor  of  the  lien  of  subsequent  judgment  creditors.  The 
first  judgment,  although  not  docketed,  was  therefore  entitled  to  a 
preference  over  the  lien  of  a  junior  judgment,  which  had  been  dock- 
eted as  directed  by  the  statute.  But  if  the  land  of  the  debtor  had 
been  sold  by  the  sheriff,  under  an  execution  upon  the  junior  judg- 
ment, to  a  purchaser  who  was  ignorant  of  the  existence  of  the  prior 
docketed  judgment,  such  purchaser  took  the  land  discharged  of  the 
lien  of  the  undocketed  judgment. 

The  revised  statutes  of  1830  made  a  very  material  alteration  in 
the  law  relative  to  the  lien  of  judgments.     The  12th  section  of  the 
title  in  relation  to  judgments  (2  B.  S.  360)  declares  that  no  judg- 
ment shall  affect  any  lands,  tenements,  real  estate  or  chattels  real, 
or  have  any  preference  as  against  other  judgment  creditors,  until 
the  record  thereof  shall  l)e  filed  and  docketed,  as  therein  directed. 
The  effect  of  this  provision  appears  to  be  to  prevent  the  common 
law  lien  of  the  judgment  from  attaching  at  all  upon  the  real  estate 
of  the  judgment  debtor  until  the  judgment  has  been  docketed  ;  and 
not  merely  to  protect  bona  fide  purchasers  and  incumbrancers,  who 
had  no  notice  of  the  existence  of  the  judgment  when  their  interests 
in,  or  liens  upon,  the  real  estate  of  the  judgment  debtor  accrued. 
The  same  policy  was  carried  out  in  the  act  of  the  14th  May,  1840, 
{Laws  of  1840,  ch.  386,  §  25,  p.  334,)  the  25th  section  of  which  de- 
clares that  no  judgment  or  decree,  which  should  be  entered  after 
that  act  took  effect,  should  be  a  lien  upon  real  estate,  unless  the 
same  should  be  docketed  in  books  provided  for  that  purpose  by  the 
county  clerk  of  the  county  where  the  lands  are  situate.     The  exist- 
ing law,  as  prescribed  by  the  code  of  1851,  §  28,  (5  B.  S.  545,  5th  ed.) 


LIEN  BY  JUDGMENT.  I53 

is  substantially  the  same.  It  provides  that  on  filing  a  judgment 
roll,  directing  in  whole  or  in  part  the  payment  of  money,  it  may 
be  docketed  with  the  clerk  of  the  county  where  it  was  rendered, 
and  in  any  other  county,  upon  filing  with  the  clerk  thereof  a  tran- 
script of  the  original  docket,  and  it  is  made  a  lien  on  the  real  prop- 
erty in  the  county  where  the  same  is  docketed,  of  every  person 
against  whom  any  such  judgment  shall  be  rendered,  and  which  he 
may  have  at  the  time  of  docketing  thereof,  in  the  county  in  which 
such  real  estate  is  situated,  or  which  he  shall  acquire  at  any  time 
thereafter,  for  ten  years  from  the  time  of  docketing  the  same  in  the 
county  where  it  vras  rendered. 

The  code  of  procedure,  (§  63,)  also  provides  for  do'hketing  the 
judgment  rendered  by  a  justice  of  the  peace,  when  the  amount  of 
the  judgment  exceeds  twenty-five  dollars,  by  filing  and  docketing  a 
transcript  of  the  judgment  in  the  office  of  the  clerk  of  the  county  where 
the  judgment  was  rendered.  From  the  time  of  the  receipt  of  the 
transcript  the  judgment  is  treated  as  a  judgment  of  the  county 
court.  A  certified  copy  of  this  transcript  may  be  filed  in  the  clerk's 
office  of  any  other  county,  and  with  the  like  effect,  in  every  respect, 
as  in  the  county  where  the  judgment  was  rendered ;  except  that  it 
shall  be  a  lien,  only  from  the  time  of  filing  and  docketing  the  tran- 
script. The  lien  of  such  a  judgment  on  real  estate  is  coextensive 
with  that  of  a  judgment  of  the  county  court.  ( Waltermirc  v. 
Westover,  4  Kern.  16.  Crippen  v.  Hudson,  3  id.  161.  Dickin- 
son V.  Smith,  25  Barb.  102.) 

A  judgment  does  not  lose  its  lien  upon  real  estate  by  the  suffering 
of  an  execution  issued  thereon  to  lie  dormant  in  the  sheriff"'s  hands. 
The  doctrine  on  the  subject  of  dormant  executions  does  not  apply 
to  real  estate ;  the  lien  upon  which  depends  upon  the  docketing  of 
the  judgment,  and  not  upon  the  execution  or  levy.  And  suciriien 
does  not  become  dormant  until  the  expiration  of  the  statutory  lim- 
itation of  ten  years.     (Bluir  v.  Leitch,  7  Barb.  341.) 

Since 'the  act  of  1840,  judgments  are  liens  upon  real  estate  only 
when  docketed  in  the  offices  of  the  clerks  of  the  counties  where 
the  premises  are  situated.  (Johnson  v.  Fitzhugh,  3  Barb.  Ch.  360.) 
Judgments  of  the  supreme  court  prior  to  the  act  of  1840  are  not 
aff'ected  by  it,  and  such  judgments  continue  a  lien  upon  lands 
throughout  the  state,  though  they  have  been  revived  by  scire  facias 
since  that  act  took  effect,  {aarh  v.  DaUn,  2  Barb.  Ch.  36.) 
The  lien  of  a  judgment  ceases  absolutely,  after  the  lapse  of  ten 


154  JUDGMENTS  OF  U.  S.  COURTS. 

years  from  its  docketing,  as  against  subsequent  mortgages,  judg- 
ments or  other  incumbrances  ;  and  as  to  them,  the  question  of  notice, 
actual  or  constructive,  cannot  arise.  {Little  v.  Harvey,  9  Wend.  157.) 
And  it  seems  that  all  purchasers  are  to  be  considered  purchasers  in 
good  faith  within  the  meaning  of  the  act  on  this  subject,  except  those 
who  purchase  with  an  actual  fraudulent  intent.  And  it  does  not  alter 
the  case  that  they  purchased  during  the  ten  years,  and  with  knowl- 
edge of  the  judgment.  {Titffts  v.  Tuffts,  18  Wend.  621.  Lansing  v. 
Fischer,  1  Coiuen,  431.     Crosier  v.  Arer,  7  Paige,  137.) 

The  judgments  of  which  we  have  been  speaking  are  judgments  of 
the  courts  of  this  state.  As  there  is  no  act  of  congress  making  a 
judgment  i*i  a  court  of  the  United  States  a  lien  upon  lands,  either 
within  the  general  territorial  juridiction  of  the  court  or  elsewhere, 
the  existence  of  such  a  lien  must  depend  upon  the  local  law  of  the 
state  where  the  land  is  situated  upon  which  such  a  lien  is  claimed. 
(Taylor  v  Thompson's  Lessee,  5  Peters,  358,  Manhattan  Co.  v. 
Fvertson,  6  Paige,  467.)  A  judgment  recovered  in  the  district 
or  circuit  court  of  the  United  States  for  the  northern  or  southern 
district  of  the  state  of  New  York  is  a  lien  upon  lands  throughout 
the  state,  for  the  term  of  ten  years  from  the  time  of  docketing  such 
judgment,  in  conformity  to  the  local  law  of  the  state.  {The  Manhat- 
tan Co.  V.  Fvertson,  supra.)  But  it  seems  that  a  judgment  in  favor 
of  the  United  States,  recovered  in  one  of  the  federal  courts  out  of 
the  state  of  New  York,  is  not  a  lien  upon  lands  within  that  state 
from  the  docketing  of  the  judgment ;  although  by  the  law  of  the 
United  States,  an  execution  on  such  judgment  may  be  issued  against 
the  defendant's  property  in  any  state  of  the  Union. 

If  the  lien  of  the  judgment  was  coextensive  with  the  right  to  is- 
sue execution,  the  recovery  of  a  judgment  in  favor  of  the  United 
States  in  the  district  of  Louisiana,  if  duly  docketed,  would  create  a 
lien  upon  the  lands  of  the  debtor  heir  ;  so  that  no  purchaser  could 
consider  himself  safe  in  purchasing  lands  within  the  state  until  he 
had  searched  the  records  of  every  federal  court  throughout  the  whole 
extent  of  the  Union.  But  a  different  rule  prevails.  The  judgment 
of  the  federal  court,  to  be  a  lien  on  the  lands  of  the  debtor  in  this 
state,  must  be  a  judgment  of  one  of  the  federal  courts  within  this  • 
state.     (Id.) 

There  are  other  securities  which  become  a  lien  on  real  estate. 
Thus,  every  person  chosen  or  appointed  to  the  office  of  collector,  be- 
fore he  enters  on  the  duties  of  his  office,  and  within  eight  days  after 


WHEN  TAXES  ON  LANDS  ARE  LIENS.  155 

he  receives  notice  of  the  amount  of  the  taxes  to  he  collected  by  him, 
is  required  to  execute  to  the  supervisor  of  the  town  and  to  lodge 
with  him,  a  bond,  with  one  or  more  sureties  to  be  approved  by  such 
supervisor,  in  double  the  amount  of  such  taxes,  conditioned  for  the 
faithful  execution  of  his  duties  as  such  collector.  (1  R.  8.  346, 
§  19.)  The  supervisor  is  required  to  file  such  bond,  with  his  appro- 
bation indorsed  thereon,  in  the  office  of  the  county  clerk,  who  is  re- 
quired to  make  an  entry  thereof  in  a  book  to  be  provided  for  that 
purpose,  in  the  same  manner  in  which  judgments  are  entered  of  re- 
cord. Every  such  bond  is  declared  to  be  a  lien  on  all  the  real  estate 
held  jointly  or  severally  by  the  collector  or  his  sureties  within  the 
county,  at  the  time  of  the  filing  thereof,  and  to  continue  such  lien 
till  its  condition,  together  with  all  costs  and  charges  which  may  ac- 
crue by  the  prosecution  thereof,  shall  be  fully  satisfied.     {Id.  §  20.) 

In  the  general  act  relative  to  villages,  all  taxes  levied  by  virtue 
of  the  act  are  made  a  lien  upon  the  real  estate  upon  which  they  shall 
be  assessed.     (2  id.  712,  5th  ed.) 

Taxes  charged  on  lands  returned  to  the  comptroller,  and  the  inter- 
est thereon,  are  a  lien  upon  such  lands,  and  after  remaining  unpaid 
for  two  years  from  the  first  day  of  May  following  the  year  in  w^hich 
they  were  assessed,  that  officer  is  authorized  to  proceed  to  advertise 
and  sell  the  land  in  the  manner  pointed  out  by  law.  (1  B.  JS.  930, 
5th  ed.)  It  is  on  this  principle  that  taxes  assessed  on  the  estates 
of  deceased  persons  previous  to  their  death  are  entitled  to  priority 
of  payment  over  debts  due  to  individuals.     (2  id.  87.) 

Taxes  imposed  by  the  United  States  are  a  lien  upon  the  real  es- 
tate, and  these,  together  with  debts  due  to  the  government,  are  enti- 
tled to  priority  of  payment  in  administering  the  estates  of  deceased 
persons  ;  (2  R.  S.  87 ;)  but  in  the  case  of  debts  due  to  the  govern- 
ment no  lien  is  created,  which  will  overreach  a  bona  fide  transfer  of 
property  in  the  ordinary  course  of  business.  It  is  a  mere  priority  of 
payment,  as  among  the  creditors  of  a  common  debtor.  {United 
States  v.  Fisher,  2  Cranch,  358.) 


156  ESTATES  IN  EXPECTANCY. 

CHAPTER  VI. 

OF  ESTATES  IN  EXPECTANCY. 

Section  I. 
Of  remainder,  generally. 

Estates,  when  considered  with  respect  to  the  time  of  their  enjoy- 
ment, arc  divided  into  estates  in  possession,  and  estates  in  expect- 
ancy.    (1  R.  S.  722.) 

An  estate  in  possession  is  when  the  owner  has  an  immediate  right 
to  the  possession  of  the  land.  It  is  sometimes  spoken  of  as  an  estate 
executed,  when  there  is  a  present  and  immediate  right  of  j)re8ent  or 
future  enjoyment.  (1  Prest.  on  Est.  62.)  In  tliis  sense  it  applies 
to  vested  estates  as  distinguished  from  such  as  are  contingent. 

An  estate  in  expectancy  is  when  the  right  to  the  jjossession  is  post- 
poned to  a  future  period.  (1  li.  S.  723.)  And  in  the  revised  stat- 
utes it  is  divided  into  1.  Estates  commencing  at  a  future  day,  de- 
nominated future  estates  ;  and  2.  Reversions.  (/(/.)  Tlie  first  arc 
created  by  the  act  of  the  parties ;  and  the  second  by  the  act  of 
the  law. 

Previous  to  1830,  the  law  on  this  abstruse  branch  of  our  juris- 
prudence was  formed  U])on  tlie  model  of  the  English  law.  We  were 
governed  by  the  common  law.  The  revisers,  as  they  tell  us  in  their 
notes,  (3  R.  S.  570,  571,  2d  ed.)  with  a  view  to  extricate  this 
branch  of  the  law,  from  the  perplexity  and  obscurity  in  which  it  was 
then  involved,  and  render  a  system  simple,  uniform  and  intelligible, 
■which,  in  its  then  present  state,  was  various,  complicated  and  ab- 
struse, proposed  certain  alterations  which  were  substantially  adopted 
by  the  legislature.  After  pointing  out  some  of  the  refinements  and 
subtleties  of  the  English  law  in  this  respect,  they  suggested  that  the 
obvious  and  effectual  remedy  was  to  abolish  all  technical  rules  and 
distinctions,  having  no  relation  to  the  essential  nature  of  property, 
and  the  means  of  its  beneficial  enjoyment,  but  which,  derived  from 
the  feudal  system,  rested  solely  upon  feudal  reasons  ;  to  define  with 
precision  the  limits  within  which  the  power  of  alienation  might  be 
suspended  by  the  creation  of  contingent  estates,  and  to  reduce  all 


FUTURE  ESTATES.  157 

expectant  estates  substantially  to  the  same  class,  and  to  apply  to 
them  the  same  rules  whether  created  by  deed  or  devise. 

By  the  term  a  future  estate,  the  legislature  intended  not  only  to 
embrace  remainders,  properly  so  called,  but  also  springing  and  sec- 
ondary uses,  and  executory  devises,  and  to  bring  them  all  under  the 
same  rule. 

In  considering  these  provisions  of  the  revised  statutes  it  is  neces- 
sary to  understand  the  law  as  it  stood  antecedent  to  these  enact- 
ments. We  cannot  otherwise  comprehend  the  nature  and  import- 
ance of  the  changes. 

At  common  law  an  estate  in  remainder  was  defined  to  be  an  estate 
to  take  effect  and  be  enjoyed  after  another  estate  was  determined. 
As  if  a  man  seised  in  fee  simple,  grants  lands  to  A.  for  a  term  of 
years,  or  for  life,  and  after  the  determination  of  the  said  term,  then 
to  B.  and  his  heirs  forever ;  these  two  interests,  for  many  purposes, 
constitute  but  one  estate.  By  uniting  in  a  conveyance  to  a  third 
person  in  fee,  the  estate  of  A.  and  B.  become  consolidated  into 
one  estate  in  their  grantee.  (2  Black.  Com.  164.  Crahhe  on  Real 
Estate,  §  2323.) 

'  In  the  words  of  Lord  Coke,  a  remainder  is  a  residue  of  an  estate 
in  land  depending  upon  a  particular  estate,  and  created  together  with 
the  same  at  one  time.  (1  Inst.  49  a.)  The  validity  of  a  remainder 
depended,  at  common  law,  upon  a  few  general  rules:  Ist,  there 
must  be  a  particular  estate,  precedent  to  the  estate  in  remainder ; 
2d,  it  must  commence  or  pass  out  of  the  grantor  at  the  same  time 
of  the  creation  of  the  particular  estate ;  and  3d,  it  must  vest  in  the 
grantee  during  the  continuance  of  the  particular  estate,  or  eo  instanti 
that  it  determined.  These  were  elementary  principles  in  the  law  of 
remainder.  In  addition  to  which  it  may  be  said  that  a  remainder 
in  fee  could  not  be  created  after  another  estate  in  fee,  and  be  valid 
as  a  remainder. 

The  revised  statutes  so  changed  the  law  that  a  future  estate  could 
be  limited  to  take  effect  without  the  intervention  of  a  precedent  es- 
tate. They  define  a  future  estate,  to  be  an  estate  limited  to  com- 
mence in  possession  at  a  future  day,  either  without  the  intervention 
of  a  precedent  estate,  or  on  the  determination,  by  lapse  of  time  or 
otherwise,  of  a  precedent  estate,  created  at  the  same  time.  (1  R.  S. 
723,  §  10.)  The  subsequent  section  states,  that  where  a  future  es- 
tate is  dependent  on  a  precedent  estate,  it  may  be  termed  a  remainder, 
and  may  be  created  and  transferred  by  that  name. 


158  FUTURE  ESTATES. 

In  a  case  contemplated  by  the  11th  section,  it  is  presumed  that 
the  term  remainder  has  its  common  law  meaning,  and  that  it  is  not 
valid  as  such  remainder,  unless  the  precedent  estate  by  which  it  is 
upheld  is  something  more  than  a  mere  estate  at  will.  {Lord  Staf- 
ford's case,  8  Co.  75  a.)  An  estate  at  will  is  of  too  frail  a  nature 
to  uphold  an  estate  in  remainder.  Such  estate  cannot  be  sold  on 
execution.  {Bigeloio  v.  Finch,  11  Barh.  498.  S.  C.  17  id.  394. 
Post  V.  Post,  14  id.  257,  per  Hand,  J.)  A  remainder  upheld  only 
by  an  estate  at  will,  would  be  void  in  its  creation. 

It  was  a  principle  of  the  common  law,  that  when  the  particular 
estate  was  defeated,  the  remainder  was  thereby  defeated  also.  There 
were  some  exceptions  to  this  rule.  When  the  particular  estate  and 
the  remainder  depended  upon  one  title,  the  defeating  of  the  particu- 
lar estate  would  be  a  defeating  of  the  remainder.  But  when  tho 
particular  estate  was  defeasible,  and  the  remainder  by  good  title, 
then,  though  the  particular  estate  be  defeated,  the  remainder  was 
good.     {Go.  Litt.  298  a.) 

Though  an  estate  may  not  be  good  as  a  remainder,  when  the 
particular  estate  is  void  or  is  defeated,  it  is  believed  that  it  may  be 
good  as  Q.  future  estate,  within  the  meaning  of  the  tenth  section.  If 
such  an  estate  could  be  created  without  the  intervention  of  a  par- 
ticular estate,  no  reason  is  perceived  why  it  should  be  defeated  by 
the  failure  of  such  estate. 

Upon  the  rules  which  have  been  stated  as  to  the  validity  of  re- 
mainders, the  doctrine  of  contingent  remainders  sprung  up.  The 
policy  of  the  revised  statutes  was  to  apply  to  future  estates  gener- 
ally, the  doctrines  which,  at  common  law,  were  applicable  to  remain- 
ders. As  remainders  were  vested  and  contingent,  so  it  was  proper  to 
declare  i\isX  future  estates  should  be  either  vested  or  contingent. 
They  are  vested  where  there  is  a  person  in  being  who  would  have  an 
immediate  right  to  the  possession  of  the  lands,  upon  the  ceasing  of 
the  intermediate  or  precedent  estate.  They  are  contingent  whilst 
the  person  to  whom,  or  the  event  upon  which  they  are  limited  to 
take  effect,  remains  uncertain.  (1  P.  S.  723,  §  13.)  This  defini- 
tion seems  to  have  been  taken  from  the  systematic  writers  on  the 
subject  of  remainders.  Mr.  Cruise,  whose  work  was  before  the  re- 
visers when  they  framed  the  statute  we  are  considering,  speaks  of 
vested  remainders,  or  remainders  executed,  as  he  calls  them,  as  those 
by  which  a  present  interest  passes  to  the  party,  though  to  be  en- 
joyed in  future,  and  by  which  the  estate  is  invariably  fixed  to  re- 


VESTED  AND  CONTINGENT  REMAINDERS.  I59 

loain  to  a  determinate  person  after  the  particular  estate  is  spent. 
Mr.  Fearne,  whose  valuable  treatise  on  this  subject  is  often  cited  by 
the  revisers,  says,  an  estate  is  vested  when  there  is  an  immediate 
fixed  right  of  present  or  future  enjoyment.  An  estate  is  vested  in 
possession  when  there  exists  a  right  of  present  enjoyment.  An 
estate  is  vested  in  interest  when  there  is  a  present  fixed  right  of 
future  enjoyment.  An  estate  is  contingent  when  a  right  of  enjoy- 
ment is  to  accrue  on  an  event  which  is  dubious  and  uncertain. 
{Cruise's  Dig.  title  16,  Remainder,  ch.  1,  §  8  and  notes,  Greenleafs 
ed.)  To  the  same  effect  is  Mr.  Preston :  An  estate  executed,  is,  says 
he,  when  there  is  a  present  and  immediate  right  of  present  or  future 
enjoyment.  Every  estate  which  is  executed,  necessarily  gives  a 
vested  interest.  Whether  the  estate  be  executed  in  possession  or 
merely  in  interest,  and  not  in  possession,  will  depend  on  the  circum- 
stances of  its  conferring  a  right  of  present  or  future  enjoyment. 
When  the  right  of  enjoyment  in  possession  is  to  arise  at  a  future 
period,  the  estate  is  executed  only ;  that  is,  vested  only  in  point  of 
interest ;  and  when  the  right  of  immediate  enjoyment  is  annexed  to 
the  estate,  then  only  is  the  estate  executed  in  possession.  (1  Pres- 
ton on  Estates,  62.) 

The  term  vested  is  used  by  all  these  writers,  as  it  is  also  by  the 
statute,  in  opposition  to  contingent. 

The  statute  we  have  seen  states  that  estates  are  contingent  whilst 
the  person  to  whom,  or  the  event  upon  which  they  are  limited  to 
take  efi'ect,  remains  uncertain.  A  remainder,  says  Mr.  Cruise,  is 
contingent  when  it  is  limited  to  take  eff"ect  on  an  event  or  condition 
which  may  never  happen  or  be  performed,  or  which  may  not  happen  or 
be  performed  till  after  the  determination  of  the  preceding  particular 
estate,  in  which  latter  case,  at  common  law,  such  remainder  could 
never  take  efi'ect.  Mr.  Fearne  reduces  the  various  contingent  re- 
mainders to  four  kinds :  1st.  When  the  remainder  depends  entirely 
on  a  contingent  determination  of  the  preceding  estate  itself.  The 
second  is  when  some  uncertain  event,  unconnected  with  and  collat- 
eral to  the  determination  of  the  preceding  estate,  is  by  the  nature 
of  the  limitation  to  precede  the  remainder.  The  third  is  when  it  is 
limited  to  take  efi'ect  upon  an  event  which,  though  it  certainly 
must  happen  some  time  or  other,  yet  may  not  happen  till  after 
the  determination  of  the  particular  estate,  in  which  latter  case  the 
remainder  becomes  void  at  common  law.     And  fourth,  when  it  is 


160  CONTINGENT  REMAINDERS. 

limited  to  a  person  not  ascertained,  or  not  in  being  at  the  time  such 
limitation  is  made. 

Section  II. 
Of  Contingent  Remainders. 

Having  stated,  in  the  preceding  section,  some  general  views  with 
respect  to  future  estates,  and  especially  as  to  vested  and  contingent 
remainders,  it  is  proposed,  in  the  present  section,  to  enlarge  upon 
the  subject  and  to  give  some  illustration  of  the  rules  which  have 
been  proposed  by  authors  on  this  interesting  subject.  The  case  put 
by  Mr.  Fearne,  by  way  of  illustration  of  the  first  case,  is,  if  A.  makes 
a  feoffment  to  the  use  of  B.  till  C.  returns  from  Rome,  and  after 
such  return  of  C,  then  to  remain  over  in  fee ;  where  the  particular 
estate  is  limited  to  determine  on  the  return  of  C,  and  only  on  that 
determination  of  it  is  the  remainder  to  take  effect ;  but  that  is  an 
effect  which  possibly  may  never  happen ;  therefore  the  remainder, 
which  depends  entirely  upon  the  determination  of  the  preceding 
estate  by  it,  is  contingent.     [Cruise,  title  16,  ch.  1,  §  11.) 

A  testator  by  his  will  made  in  1792,  after  giving  all  his  personal 
estate  to  his  wife,  gave  to  her  all  his  real  estate  in  fee,  except  two 
lots  of  land  in  the  city  of  New  York.  Those  parcels  he  devised  to 
his  wife  for  life,  and  after  her  death,  in  case  her  daughter,  an  only 
child,  should  die  without  having  married,  or  without  having  any 
child  or  children,  one  parcel  to  his  nephew  William,  and  the  other 
to  his  nephew  Henry.  The  daughter  survived  the  mother,  but  after- 
wards died  without  issue.  It  was  held  by  the  court  of  appeals  that 
by  the  will  the  nephews  took  contingent  remainders  in  fee,  which 
would  take  effect  only  in  case  the  daughter  died  childless,  during 
the  life  of  the  loidow ;  that  the  daughter,  in  the  meantime,  took  the 
fee  by  descent ;  and,  on  her  surviving  the  widow,  the  remainder  fell, 
and  she  became  entitled  to  the  premises  absolutely.  (  Wolfe  v.  Vo.n 
Nostrand,  2  Comst.  436.) 

In  this  case  it  was  contended,  by  the  counsel  for  the  nephews, 
that  they  took  a  contingent  estate  by  way  of  executory  devise.  But 
the  court  held  otherwise ;  adopting  the  inflexible  rule  of  law,  that  a 
future  interest  capable  of  taking  effect  as  a  contingent  remainder, 
shall  never  take  effect  as  an  executory  devise.  The  remainder  to  the 
nephews  was  supported  by  the  life  estate  to  the  widow.  It  was  to 
take  effect  in  interest  upon  the  death  of  the  daughter  without  chil- 


CONTINGENT  REMAINDERS.  161 

dren  during  the  life  of  her  mother ;  and  in  possession  on  the  death 
of  the  latter.  The  fee  in  the  mean  time  descended  to  the  daughter, 
as  heir  at  law  to  her  father.  She  having  survived  her  mother,  the 
remainder  fell  with  the  freehold  estate  upon  which  it  was  dependent, 
to  wit,  the  life  estate  of  the  mother,  and  she  thus  became  untitled  to 
the  premises  absolutely.  The  remainder  to  the  nephews  was  con- 
tingent on  the  determination  of  the  preceding  estate,  the  life  estate 
to  the  widow. 

The  second  proposition  of  Mr.  Fearne  is  taken  from  the  case  put 
by  Coke.  (1  Inst.  378  a.)  If  a  man  make  a  lease  for  life  to  A.,  B. 
and  C,  and  if  B.  survive  C.  then  the  remainder  to  B.  and  his  heirs. 
Here  the  want  of  B.'s  surviving  C.  does  not  affect  the  determination 
of  the  particular  estate ;  but  it  must  precede  and  give  effect  to  B.'s 
remainder ;  and  as  such  an  event  is  dubious,  the  remainder  is  con- 
tingent. It  is  a  common  possibility  that  one  man  may  die  before 
another,  and  it  is  therefore  an  event  upon  which  a  remainder  may 
commence  upon  limitation  of  time. 

Where  a  remainder  in  fee  was  limited  by  the  will  to  the  eldest 
son  of  the  first  taker  to  whom  an  intermediate  life  estate  was  given, 
the  remainder  was  held  to  be  contingent  until  the  birth  of  such  son  ; 
but  on  the  happening  of  that  event  before  the  termination  of  the  life 
estate,  it  became  a  vested  estate  in  remainder.  And  where  an  estate 
tail  in  remainder  was  so  limited,  and  became  vested  by  the  birth  of  a 
son  prior  to  the  act  of  1786,  abolishing  entails,  it  was  held  that  by  the 
operation  of  that  act  the  estate  tail  in  remainder  was  converted  into 
a  fee  simple  in  remainder,  which  on  the  death  of  the  remainderman 
without  issue  in  1809,  and  before  the  determination  of  the  interme- 
diate life  estate,  descended  to  his  father  as  his  heir  at  law.  A  party 
who  has  a  vested  remainder  in  fee  simple,  expectant  on  the  determi- 
nation of  a  present  freehold  estate,  has  such  a  seisin  in  law  where 
the  estate  was  acquired  by  purchase,  as  will  constitute  him  a  stirpes, 
or  stock  of  descent.  (Wendell  v.  Crandall,  1  Comst.  491;  S.  0. 
2  Denio,  9.) 

In  the  foregoing  case  the  testatoj  devised  certain  real  estate  to 
trustees  in  fee  for  and  during  the  life  of  his  grandson  Mathias,  the 
eldest  son  of  the  testator's  son  Dick,  to  support  contingent  remain- 
ders in  his  will,  so  that  they  might  not  be  destroyed,  but  in  trust 
nevertheless  to  permit  and  suffer  him  to  receive  the  rents  and  profits 
thereof  to  and  for  his  own  use  during  his  natural  life,  and  from  and 

after  his  decease,  he  devised  the  same  to  the  first  son  of  the  bodv 
Will.— 11  ^ 


152        '  CONTINGENT  REMAINDERS. 

of  the  said  Mathias,  lawfully  issuing,  born  or  unborn,  and  to  the 
heirs  male  of  the  body  of  such  first  son,  lawfully  issuing ;  and  for 
the  defeult  of  such  issue,  then  likewise  to  the  second,  third,  and 
every  other  son  of  the  said  Mathias  successively,  &c.  Dick,  the  eldest 
son  of  Mathias,  the  grandson  of  the  testator,  was  born  in  1783,  and 
died  in  1809  ;  both  events  having  happened  while  the  life  estate  was 
running  which  did  not  terminate  until  1825.  On  the  birth  of  Dick, 
his  remainder,  which  was  before  contingent,  became  vested  in  inter- 
est, and  he  was  seised  of  an  estate  tail  in  remainder.  Although  he 
neither  had  possession,  nor  the  right  to  immediate  possession,  he  had 
a  fixed  right  of  future  enjoyment  the  moment  the  life  estate  should 
come  to  an  end.  Such  was  the  state  of  the  case  at  the  time  the  act 
of  1786  was  passed,  the  effect  of  which  was  to  turn  the  estate  tail 
into  an  estate  in  fee  simple.  The  tenant  in  tail  thus  becoming,  by 
force  of  the  statute,  a  tenant  in  fee  simple,  and  having  acquired  the 
estate  by  purchase,  constituted  a  new  stock  of  descent,  from  whona 
the  lands  might  go  according  to  the  law  of  descents,  instead  of  fol- 
lowing the  form  of  the  gift  in  tail.  (  Wendell  v.  Crandall,  supraj 
per  Bronson,  J.) 

The  uncertain  event  in  the  above  case  was  the  birth  of  Dick,  a 
matter  unconnected  with  and  collateral  to  the  determination  of  the 
preceding  estate. 

The  third  kind  of  contingent  remainder,  mentioned  in  the  pre- 
ceding section,  is  when  the  remainder  is  limited  to  take  effect  upon 
an  event  which,  though  it  certainly  must  happen  some  time  or  other, 
yet  may  not  happen  till  after  the  determination  of  the  particular 
estate,  in  which  latter  case  the  remainder  becomes  void  at  common 
law ;  because,  at  common  law,  the  remainder  must  vest  either 
during  the  continuance  of  the  particular  estate  or  at  the  very  in- 
stant of  its  determination.  This  kind  of  remainder  was  thus  illus- 
trated by  Coke :  If,  says  he,  a  lease  be  made  to  J.  S.  for  his  life,  and 
after  the  death  of  J.  D.  to  remain  to  another  in  fee,  this  remainder 
is  contingent ;  for  though  J.  D.  must  die  some  time  or  other,  yet 
he  may  survive  J.  S.  by  whose  death  the  particular  estate  will  de- 
termine, and  the  remainder  become  void.  {Boraston's  case,  3  Coke, 
20  a.) 

This  class  of  remainders  seems  to  be  included  in  the  provisions  of 
the  revised  statutes  to  prevent  the  defeat  of  contingent  remainders 
in  certain  cases.  It  is  there  enacted  that  no  remainder,  valid  in  its 
creation,  shall  be  defeated  by  the  determination  of  the  precedent 


CONTINGENT  EEMAINDERS.  163 

estate,  before  the  happening  of  the  contingency  on  which  the  re- 
mainder is  limited  to  take  effect ;  but  should  such  contingency  af- 
terwards happen,  the  remainder  shall  take  effect  in  the  same  manner 
and  to  the  same  extent  as  if  the  precedent  estate  had  continued  to 
the  same  period.     (1  R.  S.  725,  §  34.) 

The  fourth  kind  of  contingent  remainders,  alluded  to  in  the  pre- 
ceding section,  is  when  it  is  limited  to  a  person  not  ascertained,  or 
not  in  being  at  the  time  such  limitation  is  made.  Thus,  according 
to  Coke,  if  a  lease  be  made  to  one  for  life,  remainder  to  the  right 
heirs  of  J.  S. ;  now  there  can  be  no  such  person  as  the  right  heir  of 
J.  S.  till  his  death,  for  nemo  est  iLceres  viventis;  and  J.  S.  may  not 
die  till  after  the  determination  of  the  particular  estate ;  therefore 
such  remainder  is  contingent.  (1  Inst.  378  a.)  So  when  an  estate 
is  limited  to  two  persons  during  their  joint  lives,  remainder  to  the 
survivor  of  them  in  fee,  such  remainder  is  contingent,  because  it  is 
uncertain  which  of  them  will  survive.  {Cruise's  Dig.  Remainder, 
ch.  1,  §  21.)  _ 

The  foregoing  classification,  derived  from  Mr.  Fearne,  is  followed 
by  Mr,  Cruise,  and  by  other  writers.  But  it  is  too  refined  for  prac- 
tical use.  The  division  of  the  subject,  by  Blackstone,  is  more  in 
harmony  with  the  truth,  and  sufficiently  minute  for  all  purposes. 
He  embraces  all  under  two  classes,  namely,  such  as  are  limited  to 
take  effect  to  a  dubious  and  uncertain  person,  or  upon  a  dubious 
and  uncertain  event.  (2  Bl.  Com.  169.)  It  is  manifest  that  the 
legislature  had  this  classification  in  view,  in  framing  their  definition 
of  a  contingent  remainder.  After  declaring  that  an  estate  is  vested 
when  there  is  a  person  in  being,  who  would  have  an  immediate  right 
to  the  possession  of  the  lands  upon  the  ceasing  of  the  intermediate 
or  precedent  estate,  they  enact  that  remainders  are  contingent  whilst 
the  person  to  whom,  or  the  event  upon  which  they  are  limited  to 
take  effect,  remains  uncertain.  (1  R.  S.  723,  §  13.)  They  obvi- 
ously designe-d  to  bring  all  contingent  remainders  under  one  or  the 
other  condition,  as  depending  upon  the  uncertainty  of  the  person 
or  of  the  event;  and  this  seems  to  be  the  more  natural  and  philo- 
sophical di%asion  of  the  subject. 

It  was  a  principle  of  the  common  law  that  no  contingent  remain- 
der, amounting  to  a  freehold,  could  be  limited  on  an  estate  for  years, 
or  on  any  other  particular  estate  less  than  a  freehold.  The  reason 
was,  that  unless  the  freehold  passed  out  of  the  grantor  at  the  time 
when  the  remainder  was  created,  such  freehold  remainder  was  void. 


164  WHEN  POWER  OF  ALIENATION  SUSPENDED. 

Hence,  if  land  be  granted  to  A.  for  ten  years,  with  remainder  in  fee 
to  the  right  heirs  of  B.,  this  remainder  was  void.  But  if  granted  to 
A.  for  life,  with  a  like  remainder,  it  was  good.  {Chtcdlevjh's  case, 
1  Coke,  130  a.)  In  the  first  case  the  freehold  could  not  vest  in  the 
particular  tenant  as  he  had  only  an  estate  for  years ;  in  the  second 
case,  as  the  particular  tenant  has  an  estate  of  freehold,  the  remain- 
der in  fee,  as  it  passes  out  of  the  grantor,  can  vest  in  the  particular 
estate,  which  is  one  of  freehold. 

These  rules  are  modified  by  the  revised  statutes.  A  contingent 
remainder  may  now  be  created  on  a  term  of  years,  if  the  nature  of 
the  contingency  on  which  it  is  limited  be  such  that  the  remainder 
must  vest  in  interest  during  the  continuance  of  not  more  than  two 
lives  in  being  at  the  creation  of  such  remainder,  or  upon  the  term- 
ination thereof  (1  B.  S.  724,  §  20.)  And  an  estate  for  life  may 
be  limited  as  a  remainder  on  a  term  of  years,  if  made  to  a  person  in 
being  at  the  creation  of  such  estate,  and  not  otherwise.     (Id.  §  21.) 

The  power  of  alienation  of  an  estate  is  suspended  when  there  are 
no  persons  in  being  by  whom  an  absolute  fee  in  possession  can  be 
conveyed.  It  is  the  policy  of  the  law,  and  it  is  thus  enacted,  that 
every  future  estate  shall  be  void  in  its  creation  which  shall  suspend 
the  absolute  power  of  alienation  for  a  longer  period  than  that  pre- 
scribed in  that  article.  (1  R.  S.  723,  §  14.)  The  following  section 
enacts  that  the  absolute  power  of  alienation  shall  not  be  suspended 
by  any  limitation  or  condition  whatever  for  a  longer  period  than 
during  the  continuance  of  not  more  than  two  lives  in  being,  at  the 
creation  of  the  estate,  except  in  the  single  case  mentioned  in  the  16th 
section.  That  section  permits  a  contingent  remainder  in  fee  to  be 
created  on  a  prior  remainder  in  fee,  to  take  effect  in  the  event  that  the 
persons  to  whom  the  first  remainder  is  limited  shall  die  under  the  age 
of  twenty-one  years,  or  upon  any  other  contingency  by  which  the  estate 
of  such  persons  may  be  determined  before  they  attain  the  full  age. 

The  power  of  alienation  has  sometimes  been  attempted  to  be  sus- 
pended or  destroyed  as  well  by  conditions  as  by  limitation  ;  and  the 
principle  is  the  same  whether  the  condition  be  inserted  in  a  lease  in 
fee  reserving  rent,  or  in  an  absolute  conveyance.  Thus,  where  the 
lessor,  in  a  lease  of  lands  in  fee  executed  in  1785,  reserved  to  him- 
self, his  heirs  and  assigns,  in  addition  to  the  annual  rent,  the  right 
to  purchase  the  premises  in  case  the  lessee,  his  heirs  &c.  should 
choose  to  sell,  on  paying  three  quarters  of  the  price  demanded,  the 


ILLEGAL  RESTRAINT  OF  POWER  OF  ALIENATION.  165 

lessee  covenanting  to  make  the  first  offer  to  the  lessor,  his  heirs  &c. 
upon  those  terms,  and  in  case  the  offer  should  be  declined,  then  the 
lessor  reserved  to  himself,  his  heirs  &c.,  one  fourth  part  of  all  mon- 
eys which  should  arise  from  the  selling,  renting  or  disposing  of  the 
lands  by  the  lessee,  his  heirs  and  assigns,  when  and  so  often  as  the 
same  should  be  sold,  rented  or  disposed  of;  with  the  condition  that 
in  case  of  a  sale  or  other  transfer,  without  the  payment  of  such  one 
fourth  to  the  lessor,  his  heirs  or  assigns,  the  sale  or  transfer  should 
be  void,  and  the  premises  should  revert  to  the  lessor,  his  heirs  and 
assigns,  who  might  then  re-enter  upon  the  premises  and  repossess. 
and  enjoy  the  same  as  of  his  former  estate,  it  was  held  by  the  court 
of  appeals  of  New  York  that  the  reservation  of  the  quarter  sales, 
and  the  condition  and  right  of  re-entry,  upon  defliult  of  their  pay- 
ment were  void.  {DePeyster  v.  3Iichael,  2  Seld.  467.)  The  inva- 
lidity of  the  pre-emptive  right  of  purchase  by  the  grantor,  and  tho 
reservation  of  a  part  of  the  purchase  money,  the  quarter  sales,  were 
deemed  repugnant  to  an  estate  in  fee,  as  an  illegal  restraint  upon 
the  power  of  alienation.  This  doctrine  has  been  repeatedly  applied 
with  reference  to  estates  in»  fee,  though  similar  conditions  are  not  in- 
compatible with  estates  for  years  or  for  life.  {Overbagh  v.  Patrie, 
8  Barb.  28.) 

But  the  question  has  been  more  frequently  agitated  in  other 
classes  of  cases,  and  perhaps  oftener  under  wills  than  under  other 
modes  of  conveyance.  There  is  a  strong  propensity  in  the  human 
mind  to  exercise  an  unlimited  control  over  property  by  the  owner 
during  his  life,  and  to  clog  and  fetter  the  alienation  of  it  after  his 
death.  To  restrict  this  last  propensity  within  reasonable  limits  has 
been  the  object  of  the  legislature  and  the  courts. 

In  Amory  v.  Lord,  (5  Sehl.  403,)  the  testator  died,  leaving  a 
wife,  children  and  grandchildren,  having  previously  devised  his  real 
estate  to  his  wife  and  two  other  persons,  in  trust,  to  receive  the  net 
income  thereof,  and  apply  it  to  the  use  of  his  wife  during  her  life, 
or  widowhood,  and  at  her  death  or  marriage  to  divide  the  same  into 
as  many  shares  as  he  should  have  children  surviving  him,  the  net 
income  of  one  share  to  be  received  by  each  child  during  his  or  her 
life,  and  afterwards  by  his  or  her  husband  or  wife  during  life  or  until 
marriage,  and  then  the  fee  of  each  share  to  vest,  absolutely,  in  the 
children  of  each  child,  if  any,  and  if  none,  then  in  the  right  heirs  of 
the  testator  ;  it  was  held  by  the  New  York  court  of  appeals  that  the 
entire  devise  was  void,  for  the  reason  that  it  suspended  the  absolute 


IQQ  RULE  IN  SHELLEY'S  CASE. 

power  of  alienation  beyond  the  continuance  of  two  lives  in  being  at 
the  time  when  the  devise  was  to  take  effect.  The  court  thought 
that  by  this  devise  the  widow  and  children  of  the  testator  and  their 
surviving  wives  and  husbands  did  not  take  successive  legal  estates, 
in  which  case  the  two  first  would  be  valid  and  the  others  void,  but 
mere  equities,  all  dependent  upon  the  trust,  which  being  void,  the 
equitable  interests  all  foiled.  In  this  case,  notwithstanding  a  qual- 
ified power  was  given  to  the  trustees  to  lease  the  estate  for  terms  not 
exceeding  ten  years,  and  to  sell  such  portions  thereof  as  might  be 
necessary  to  discharge  liens  and  pay  for  improvements  upon  the  res- 
idue, the  absolute  power  of  alienation  was  suspended,  and  hence  it 
was  void. 

There  is  no  subject  which  has  created  more  intense  litigation  than 
that  which  arose  on  the  construction  of  an  instrument  in  which  a 
remainder  was  limited  to  the  heirs,  or  heirs  of  the  body  of  a  person 
to  whom  a  life  estate  in  the  same  premises  were  given,  wherein  the 
question  was  whether  the  persons  who,  on  the  determination  of  tho 
life  estate  should  be  the  heirs  of  the  body  of  such  tenant  for  life, 
should  be  entitled  to  take  as  purchasers  by  virtue  of  the  remainder 
so  limited  to  them,  or  whether  the  whole  estate  should  vest  in  the  first 
taker ;  or  in  other  words,  whether  the  word  heirs  were  words  of  lim- 
itation or  words  of  purchase. 

This  question  was  settled  in  England  in  the  reign  of  Elizabeth, 
by  what  is  termed  the  rule  in  Shelley's  case,  and  the  rule  itself  is 
explained  with  more  or  less  fullness  by  the  English  writers  on  es- 
tates. It  is  not  intended  in  this  work  to  go  into  an  elaborate  exam- 
ination of  that  rule  or  of  the  reasons  for  it.  Mr.  Preston  gives  sev- 
eral descriptions  of  the  rule,  the  most  brief  and  comprehensive  of 
which  is,  that  where  the  ancestor  takes  an  estate  of  freehold,  by  any 
gift  or  conveyance,  and  in  the  same  gift  or  conveyance  there  is  a 
limitation,  either  mediate  or  immediate,  to  his  heirs,  or  heirs  of  his 
body,  the  word  heirs  is  a  word  of  limitation  of  the  estate,  and  not 
of  purchase.  The  consequence  of  this  rule  is,  that  the  first  taker 
takes  the  whole  estate,  in  fee  simple,  according  to  the  former  law  of 
this  state.  [Shelley's  case,  1  Rep.  94,  104.  1  Preston  on  Estates^ 
264.)  This  rule  was  adopted  by  the  supreme  court  of  this  state 
about  the  year  1801,  as  appears  by  the  first  reported  case  on  the 
subject.  [Brant  v.  Gelston,  2  John.  Cas.  384.)  The  judges  who  de- 
livered the  opinion  of  the  court  assume  that  the  doctrine  of  Shel- 


ENTAILS  ABOLISHED.  167 

le/s  case  was  a  part  of  the  common  law,  and  as  such  binding  upon 
our  courts.  It  continued  to  he  the  hiw  of  this  state  until  the  rule 
was  abrogated  by  the  legislature  at  the  revision  of  the  laws  in  1830. 
The  abrogation  of  the  rule  is  thus  expressed  :  "  Whenever  a  remain- 
der shall  be  limited  to  the  heirs  of  the  body  of  a  person  to  whom  a 
life  estate  in  the  same  premises  shall  be  given,  the  persons  who,  on 
the  determination  of  the  life  estate,  shall  be  the  heir  or  heirs  of  the 
body  of  such  tenant  for  life,  shall  be  entitled  to  take  as  purchasers 
by  virtue  of  the  remainder  limited  to  them."  (1  R.  S.  725,  §  28.) 
The  abrogation  of  the  rule  applies  to  wills  as  well  as  deeds.  Its 
effect  is,  in  cases  where  the  former  rule  applied,  to  turn  estates  in  fee 
into  contingent  remainders  ;  and  this  probably,  in  most  cases,  was 
what  the  creator  'of  the  estate  desired. 

At  common  law,  where  an  estate  is  conveyed  or  devised  to  A.,  and 
if  he  die  without  issue,  or  without  heirs  of  his  body,  or  without  heirs 
when  the  limitation  over  is  to  an  heir,  then  to  B.  in  fee,  A.  takes  an 
estate  tail,  on  which  the  limitation  to  B.  is  valid  as  a  remainder ; 
and  if  the  entail  be  not  barred,  the  fee  will  vest  in  B.  or  his  heirs  in 
case  of  the  failure  of  the  issue  of  A.  at  any  distance  of  time.  By  the 
operation  of  our  statute  abolishing  entails,  the  estate  of  A.  is  con- 
verted into  a  fee  simple  absolute,  and  thus  the  remainder  to  B.  and 
his  heirs  is  entirely  defeated. 

The  revisers  conceived  that  it  was  possible,  notwithstanding  the 
abolition  of  entailments,  to  preserve  this  remainder,  and  they  did  so 
by  the  provision  declaring  that  when  a  remainder  in  fee  should  be 
limited  upon  any  estate,  which  would  be  adjudged  a  fee  tail,  accord- 
ing to  the  law  of  this  state  as  it  existed  previous  to  the  12th  July, 
1782,  such  remainder  should  be  valid  as  a  contingent  limitation 
apon  a  fee,  and  should  vest  in  possession  on  the  death  of  the  first 
taker,  without  issue  living  at  the  time  of  such  death.  (1 B.  S.  722, 
§  4.  IB.  L.  52,  §  1  Van  Bensselaer  v.  Boucher,  5  Denio,  35. 
Vanderlieyden  v.  Crandall,  2  id.  9.) 

With  respect  to  estates  tail  by  implication,  the  foregoing  provision 
was  sufficient ;  but  it  was  deemed  necessary  to  embrace  limitations 
of  chattel  interests,  and  those  cases  in  which  the  remainder  was  lim- 
ited on  the  death  of  a  person  to  whom  no  estate  was  given.  {Bev. 
Notes,  3  B.  S.  573,  2d  ed.)  This  was  sought  to  be  accomplished 
by  the  22d  and  23d  sections,  (1  B.  S.  724,)  by  enacting  that  when 
a  remainder  shall  be  limited  to  take  effect  on  the  death  of  any  per- 


168  CONTINGENT  REMAINDERS. 

Bon,  without  heirs,  or  heirs  of  his  body,  or  without  issue,  the  words 
"heirs"  or  "issue"  should  be  construed  to  mean  heirs  or  issue  living 
at  the  death  of  the  person  named  as  ancestor,  and  by  dechiring  that 
all  the  provisions  contained  in  that  article  relative  to  future  estates 
should  be  construed  to  apply  to  limitations  of  chattels  real  as  well 
as  of  freehold  estates,  so  that  the  absolute  ownership  of  a  terra  of 
years  should  not  be  suspended  for  a  longer  period  than  the  absolute 
power  of  alienation  can  be  suspended  in  respect  to  a  fee.  The  eifect 
of  the  former  law  upon  the  words  "  without  leaving  any  issue,"  are 
explained  in  Rathhone  v.  Dyckman,  (3  Paige,  30,)  as  meaning  one 
thing  when  applied  to  personal  estate,  and  an  entirely  different  thing 
when  applied  to  real  property.  The  legislature  intended  to  give  to 
those  words  the  natural  and  the  same  meaning,  whether  they  were 
used  with  reference  to  real  or  personal  property.  (1  R.  S.  724,  §§  22, 
23 ;  and  773,  §§  1, 2.     Norris  v.  Beyea,  3  Kern.  273.) 

Subject  to  the  rules  established  in  the  various  sections  in  the  article 
we  are  considering,  and  the  most  of  which  we  have  cited,  a  freehold 
estate,  as  well  as  a  chattel  real,  may  be  created  as  well  by  deed  as  by 
will,  to  commence  at  a  future  day  ;  an  estate  for  life  may  be  created 
in  a  term  of  j^ears,  and  a  remainder  limited  thereon  ;  a  remainder  of 
a  freehold  or  chattel  real,  either  contingent  or  vested,  may  be  created 
expectant  on  the  determination  of  a  term  of  years ;  and  a  fee  may 
be  limited  on  a  fee  upon  a  contingency,  which  if  it  should  occur 
must  happen  within  the  period  prescribed  in  the  same  article. 
(1  R.  S.  724,  §  24.) 

It  was  a  principle  of  the  common  law,  with  respect  to  contingent 
remainders  limited  to  a  person  not  in  being,  that  they  must  be  lim- 
ited to  a  person  who  by  a  common  possibility,  might  be  in  esse  at  or 
before  the  determination  of  the  particular  estate.  This  rule  was 
thus  illustrated :  if  an  estate  be  made  to  A.  for  life,  remainder  to  the 
heirs  of  B. ;  now  if  A.  dies  before  B.  the  remainder  is  at  an  end ; 
for  during  B.'s  life  he  has  no  heir,  neono  est  Jiceres  viventis.  But  if 
B.  dies  first,  the  remainder  then  immediately  vests  in  his  heir,  who 
will  be  entitled  to  the  land  on  the  death  of  A.  This  was  a  good 
contingent  remainder,  for  the  possibility  of  B.'s  dying  before  A.  is 
jpotentia  prophiqua,  and  therefore  allowed  in  law.  (2  BI.  Com.  170. 
Co.  Litt.  378.  Crahbe's  Law  of  Real  Prop.  §  238.)  But  a  remain- 
der to  the  right  heirs  of  B.,  if  there  be  no  such  person  as  B.  in  esse, 
was  void :  for  the  reason  that  two  contingencies  must  happen  ;  first, 
that  such  a  person  as  B.  should  be  born,  and  secondly,  that  he  should 


ALTERNATE  ESTATES.  169 

die  during  the  continuance  of  the  particular  estate ;  which  made  it 
potentia  remotissima,  a  most  improbable  possibility.     (2  Bl.  Com. 
supra.     Cruise's  Dig.  tit.  16,  cli.  2.)     On  this  principle  it  was  held 
that  a  remainder  to  a  corporation  not  in  being  at  the  time  of  the 
limitation  was  void  although  such  be  erected  during  the  particular 
estate.     (2  Co.  51  h.)     So  if  a  man  giveth  lands,  says  Coke,  to  two 
men  and  one  woman,  and  the  heirs  of  their  three  bodies  begotten,  ia 
this  case  they  have  several  inheritances ;  for  albeit  it  may  be  said 
that  the  woman  may  by  possibility  marry  both  the  men,  one  after 
another ;  yet  Jirst,   she  cannot  marry  thfem  both  in  preseiiti;  and 
the  law  will  never  intend  Si  possibility  on  a  possibility,  as  first  to 
marry  the  one,  and  then  to  marry  the  other.     (Co.  Litt.  184  a,  25  b. 
Cholmley's  case,  2  Co.  51  b.)     This  rule  forbidding  a  remainder  to  be 
limited  upon  a  remote  contingency,  or  upon  a  possibility  upon  a  possi- 
bility, or  in  the  language  of  Mr.  Fearne,  rendering  it  void  when  it 
required  the  concurrence  of  two  several  contingencies,  not  independent 
and  collateral,  but  the  one  requiring  the  previous  existence  of  the 
other,  and  yet  not  necessarily  arising  out  of  it,  was  abolished  by 
the  revised  statutes  in  1830.     This  apjolies  not  to  remainders  alone, 
but  to  all  future  estates.     The  language  of  the  section  is  general, 
that  no  future  estate,  otherwise  valid,  shall  be  void  on  the  ground  of 
the  probability  or  improbability  of  the  contingency  on  which  it  is 
limited  to  take  effect.     (1  R.  S.  724,  §  26.) 

The  common  law  allowed  of  estates  depending  on  contingencies 
with  a  double  aspect.  Thus  an  estate  might  be  given  to  A.  for  life, 
and  if  he  have  any  issue  living  at  the  time  of  his  death,  then  to  such 
issue  in  fee ;  but  if  he  die  without  issue,  then  to  B.  in  fee.  Here 
the  remainders  to  the  issue  and  to  B.  are  both  contingent,  but  one 
only  can  take  effect.  The  moment  one  vests  all  the  others  are  de- 
feated. These  are  in  truth  alternate  estates,  as  they  are  well  denom- 
inated by  the  revisers.  The  estate  is  not  rendered  unalienable  for  a 
longer  period  than  if  a  single  limitation  only  had  been  created. 
They  are  expressly  provided  for  by  the  25th  section,  (1  R.  S.  724,) 
thus  :  "Two  or  more  future  estates  may  be  created  to  take  effect  in 
the  alternative,  so  that  if  the  first  in  order  shall  fail  to  vest,  the  next 
in  succession  shall  be  substituted  for  it  and  take  efiect  accordingly." 
This  applies  as  well  to  estates  created  by  grant  as  by  devise. 

At  common  law  the  event  or  contingency  on  which  a  remainder  is 
limited  must  not  have  operated  so  as  to  abridge,  defeat  or  determ- 
ine the  particular  estate.     This  was  supposed  to  be  a  necessary  con- 


170  CONDITIONAL  LIMITATION. 

sequence  of  the  nature  of  a  remainder,  as  defined  by  Coke  ;  it  being 
of  the  essence  of  a  remainder  that  it  should  only  take  effect  in  pos- 
session on  the  natural  expiration  or  determination  of  the  first  estate. 
In  fewer  words,  a  remainder  could  not  be  limited  on  a  condition  sub- 
sequent. The  reason  of  this  rule  was,  that  no  one  could  take  ad- 
vantage of  a  condition  but  the  party  from  whom  it  moved,  namely, 
the  grantor  or  his  heirs  :  for  if  he  or  his  heirs  took  advantage  of  a 
condition  by  entry  or  claim,  the  livery  made  upon  the  creation  of 
the  estate  was  defeated,  and  of  course  every  estate  thus  created  was 
thereby  annulled  and  gone.  By  the  terms  of  the  definition,  as  a  re- 
mainder must  vest  at  the  instant  of  the  expiration  of  the  preceding 
estate,  and  as  a  remainder  was  defeated  by  the  entry  of  the  grantor, 
therefore  such  remainder  was  void.  It  hence  followed  that  a  remain- 
der, properly  so  called,  could  not  be  limited  to  take  effect  upon  a 
condition,  which  was  to  defeat  the  particular  estate;  whether  such 
condition  be  repugnant  to  the  nature  of  the  estate  to  which  it  was 
annexed  or  not.     {Cruise's  Dig.  tit.  16,  ch.  2,  §§  16,  17.) 

This  rule,  however,  that  a  remainder  limited  on  a  condition  sub- 
sequent was  void,  was  not  applicable  to  devises ;  for  in  a  devise,  al- 
though strict  words  of  condition  are  used,  yet  if  there  was  a  remain- 
der over  they  were  always  construed  as  creating  not  a  condition,  but 
a  conditional  limitation,  so  that  when  the  condition  was  broken,  or 
performed,  as  the  case  might  be,  the  remainder  commenced  in  pos- 
session, and  the  pei'son  entitled  under  it  had  an  immediate  right  to 
the  estate,  whether  an  heir  or  stranger.  By  thus  doing,  the  inten- 
tion of  the  testator  was  supposed  to  be  effectuated  by  substantiating 
the  subsequent  estate,  though  limited  to  a  stranger,  and  enforcing 
the  performance  of  the  condition  by  the  determination  of  the  pre- 
ceding estate  upon  the  breach  of  it,  notwithstanding  that  preceding 
estate  be  limited  to  the  heir  himself  Limitations  of  this  kind 
were  called  conditional  lijnitations.  {Cruise's  Dig.  §  33.  Revi- 
sers' notes,  3  B.  S.  574.)  The  revisers  admitted  the  soundness  of 
these  reasons,  and  therefore  recommended  that  the  same  principle 
should  apply  to  deeds  as  had  formerly  been  confined  only  to  wills. 
This  was  done  (1  id.  725,  §  27)  by  enacting  that  a  remainder  might 
be  limited  on  a  contingency  which  in  case  it  should  happen  would 
operate  to  abridge  or  determine  the  precedent  estate ;  and  that  every 
Buch  remainder  should  be  construed  as  a  conditional  limitation,  and 
should  have  the  same  effect  as  such  a  limitation  would  have  at  law. 
There  is  a  manifest  distinction  between  conditions  and  limitations. 


POSTHUMOUS  CHILDREN.  171 

The  condition  is  for  the  benefit  of  the  grantor  and  his  heirs ;  a  lim- 
itation is  conclusive  of  the  time  of  the  continuance,  and  of  the  extent, 
of  the  estate  granted.  The  first  renders  the  estate  voidable  hy  entry, 
the  second  renders  it  void  without  entry. 

It  is  remarked  by  Mr.  Preston,  that  it  depends  on  the  intention 
whether  words  shall  be  construed  as  creating  a  condition  precedent 
or  condition  subsequent.  A  contingent  remainder  is  an  interest  to 
commence  on  a  condition  precedent;  it  is  a  conditional  limitation; 
and  an  estate  to  be  defeated  by  a  condition,  is  a  condition  subse- 
quent.    {Frest.  on  Est.  41.) 

It  was  a  principle  of  the  common  law  that  no  remainder  could  be 
limifed  on  a  condition,  1.  Because  such  condition  would  operate  so 
as  to  abridge  the  particular  estate  ;  and  2.  Because  the  entry  of 
the  donor,  for  the  condition  broken,  would  defeat  the  remainder. 

It  is  required  that  where  a  remainder  in  an  estate  for  life  or  years 
shall  not  be  limited  on  a  contingency  defeating  or  avoiding  such 
precedent  estate,  it  shall  be  construed  as  intended  to  take  effect  only 
on  the  death  of  the  first  taker,  or  the  expiration  by  lapse  of  time  of 
such  term  for  years.     (1  R  S.  725,  §  29.) 

Previous  to  the  revised  statutes  of  1830,  our  statute  relative  to 
posthumous  children  applied  only  to  them  in  the  character  of  heirs. 
They  were  permitted  to  inherit  as  if  born  in  the  lifetime  of  their 
respective  fathers.  (1  R.  L.  54,  §  4.)  It  was  according  to  the 
strict  rules  of  the  common  law  that  a  remainder  to  the  first  son  of 
A.  being  a  contingent  remainder,  must  take  efiect  during  the  par- 
ticular estate  of  A.,  or  eo  instanti  that  it  determined  ;  and  that  if  A. 
had  no  son  in  esse  at  the  time  of  his  death  the  next  remainder  over 
took  effect  as  if  A.  had  died  without  issue.  This  led  to  the  statute  of 
10  and  11  Wm.  3,  ch.  16,  by  which  posthumous  children  were  al- 
lowed to  take  by  virtue  of  deeds  of  settlement  in  the  same  manner 
as  if  born  in  the  lifetime  of  their  father.  {Stedfast  v.  NicJiol, 
3  John.  Cas.  26,  27.)  Though  this  statute  was  re-enacted  in  the 
colony,  it  was  repealed  in  1788,  and  the  case  left  to  depend  on  the 
principles  of  the  common  law.  The  supreme  court  in  Stedfast  v. 
NicJiol,  {supra,)  held  that  the  posthumous  child  took  an  estate  in 
remainder  in  the  same  manner  as  if  he  had  been  born  in  the  life- 
time of  his  father.  The  principle  of  that  decision  was  carried  into 
the  revision,  and  it  was  expressly  enacted  that  when  a  future  estate, 
and  this  includes  a  remainder,  shall  be  limited  to  heirs,  or  issue,  or 
children,  posthumous  children  shall  be  entitled  to  take,  in  the  same 


172  EXPECTANT  ESTATES. 

manner  as  if  living  at  the  death  of  their  parent.  (1  B.  S.  725,  §  30.) 
On  the  same  principle,  a  future  estate  depending  on  the  contingency 
of  the  death  of  a  person  without  heirs  or  issue,  shall  be  defeated  by 
the  birth  of  a  posthtimous  child  of  such  person  capable  of  taking 
by  descent.  (Id.  §  31.)  Thus,  for  these  purposes,  and  there  are 
other  cases  where  the  same  rule  applies,  an  infant  in  ventre  sa  mere, 
is  considered  as  in  actual  existence. 

It  was  a  well  settled  principle  of  the  common  law  that  a  remain- 
der might  be  defeated  by  destroying  or  determining  the  particular 
estate  upon  which  it  depended  before  the  happening  of  the  contin- 
gency whereby  it  became  vested.  A  different  rule  prevailed  with 
regard  to  an  executory  devise.  A  limitation  thus  created  by  will 
received  the  full  protection  of  law,  and  could  not  be  prevented  from 
taking  effect  by  any  means  whatever.  It  was  the  policy  of  the  le- 
gislature at  the  revision  to  i)ut  all  expectant  estates  upon  the  same 
footing ;  and  thus  give  the  same  stability  to  a  contingent  remainder, 
as  to  an  executory  devise  or  to  a  secondary  use.  It  was  a  principle 
of  the  common  law  that  a  future  interest  capable  of  taking  effect 
as  a  contingent  remainder,  should  never  take'  effect  as  an  executory 
devise.  (  Wolf  v.  Van  Nostrand,  2  Cotnst.  442.)  By  reducing  all 
expectant  estates  to  the  same  class,  it  was  supposed  that  litigation 
■would  be  diminished,  and  it  would  no  longer  become  necessary  to 
determine  whether  a  particular  disposition  of  property  was  a  con- 
tingent remainder,  an  executory  devise  or  a  secondary  use.  [See 
Bevisers'  Notes,  3  R.  S.  577,  2d  ed.) 

These  objects  were  sought  to  be  accomplished  by  declaring  that 
no  expectant  est^ate  can  be  defeated  or  barred  by  any  alienation  or 
other  act  of  the  owner  of  the  intermediate  or  precedent  estate,  nor 
by  any  destruction  of  such  precedent  estate  by  disseisin,  forfeiture, 
surrender,  merger  or  otherwise.  (1  R.  8.  725,  §  32.)  It  was  sup- 
posed that  this  provision  would  render  unnecessary  the  machinery 
by  which  the  skillful  conveyancer  could  preserve  the  contingent  re- 
mainders from  being  defeated  by  the  destruction  of  the  particular 
estate,  by  any  means,  either  accidental  or  designed.  ( Vanderhey- 
den  V.  Grandall,  2  Denio,  16.)  It  in  effect  put  all  expectant  estates 
upon  the  same  footing.  But  it  was  necessary  to  provide  that  that 
section  should  not  be  construed  to  prevent  an  expectant  estate  from 
being  defeated  in  any  manner  or  by  any  means  which  the  party  cre- 
ating the  estate  should,  in  the  creation  of  it,  have  provided  for  or 


CROSS  REMAINDERS.  173 

authorized ;  nor  should  it  be  adjudged  void  in  its  creation  because 
thus  liable  to  be  defeated.     {Id.  §  33.) 

It  has  been  before  said  that  a  remainder  at  common  law  was  liable 
to  be  defeated  by  the  determination  of  the  precedent  estate,  before 
the  happening  of  the  contingency  on  which  it  was  limited  to  take 
eflfect.  This  rule  is  abolished.  But  if  the  contingency  afterwards 
happens,  the  remainder  is  allowed  to  take  effect  in  the  same  manner 
and  to  the  same  extent  as  if  the  precedent  estate  had  continued  to 
the  same  period.  (1  R.  S.  725,  §  34.)  Formerly,  if  an  estate  were 
given  to  A.  for  life,  with  the  remainder  to  the  heirs  of  B.,  if  A.  died 
during  the  life  of  B.  the  remainder  was  destroyed.  This  was  obvi- 
ated by  vesting  the  estate  in  trustees  to  preserve  the  contingent 
remainders.  Under  the  rule  established  by  the  revised  statutes,  it 
will  be  unnecessary  to  create  a  trust,  but  the  object  of  the  party  cre- 
ating the  estate  is  accomplished  by  direct  means.  Indeed  such  a 
trust  cannot  now  be  created. 

The  right  of  alienation  is  incident  to  the  absolute  ownership  of 
estates  in  possession.  It  it  on  this  principle  that  conditions  in  re- 
straint of  alienation  are  void  as  repugnant  to  the  estate  granted. 
{De  Peyster  v.  31ichael,  2  Scld.  497.  1  Inst.  223  a.  Co.  Litt.  Id.) 
The  same  principle  is  applicable  to  expectant  estates,  embracing 
vested  and  contingent  remainders  as  well  as  reversions.  As  they  are 
the  subject  of  ownership,  so  they  should  be  of  the  various  modes  of 
transfer  by  which  property  is  made  to  circulate.  They  are  de- 
scendible, devisable  and  alienable,  in  the  same  manner  as  estates  in 
possession.     (1  R.  S.  725,"  §  35.) 

There  was,  at  common  law,  a  class  of  remainders  hitherto  unno- 
ticed, namely,  cross  remainders.  They  were  of  a  complex  character 
and  grounded  upon  a  tenancy  in  common.  They  might  be  raised 
under  deeds  at  common  law,  limitations  of  use,  and  limitations  by 
devise.  They  could  not  arise  without  express  limitations  in  deeds, 
for  the  reason  that  words  of  inheritance  could  not  be  implied  in 
deeds.  In  wills  and  marriage  articles  they  frequently  arose  by  im- 
plicatiom  The  estate  implied  must  always  be  an  estate  tail,  and 
therefore  if  the  words  would  not  admit  of  the  implication  of  that 
estate,  cross  remainders  could  not  arise.  ( Whart.  Conv.  115.)  They 
seem  not  adapted  to  our  system,  in  which  that  species  of  estate  does 
not  exist.  They  are  not  mentioned  in  our  statute  relative  to  the 
creation  and  division  of  estates,  and  the  same  statute  enacts  that  all 
expectant  estates,  except  such  as  are  enumerated  and  defined  in  that 


174  FUTURE  ESTATE. 

article,  are  abolished.    (1  B.  S.  726,  §  42.)    They  probably  form  no 
part  of  our  jurisprudence  by  that  name. 

Analogous  to  a  contingent  remainder,  and  supplementary  to  it, 
the  law  recognized  a  future  estate  by  the  name  of  an  executory  de- 
mise. This  was  defined  to  be  strictly  such  a  limitation  of  a  future 
estate  or  interest  in  lands  or  chattels  as  the  law  admitted  in  the 
case  of  wills,  though  contrary  to  the  rules  of  limitation  in  convey- 
ances at  common  law.  It  differed  from  a  remainder  in  three  mate- 
rial particulars.  1.  It  did  not  need  the  support  of  a  particular  estate. 
2.  A  fee  simple  or  other  less  estate  might  be  limited  after  a  fee  sim- 
ple. 3.  A  remainder  might  be  limited  of  a  chattel  interest  after  a 
particular  estate  for  life  created  in  the  same.  (2  Black.  Com.  173.) 
We  have  already  anticipated  all  that  need  be  said  upon  this  subject. 
We  have  seen  that  the  revised  statutes  enable  the  party  to  create 
the  same  future  estate  by  deed  or  grant,  that  could  be  before  created 
only  by  will.  In  short,  they  have  placed  all  the  various  kinds  of 
future  estates  upon  the  same  footing ;  thus  placing,  in  a  great  meas- 
ure, contingent  remainders  in  the  same  category  with  executory  de- 
vises.    {See  2^ost,  part  3,  ch.  9,  §  6.) 

Section  III. 

0/  Reversions. 

The  estates  in  expectancy  hitherto  considered  in  this  chapter,  are 
such  as  are  created  by  the  act  of  the  parties.  They  owe  their  origin 
either  to  some  form  of  conveyance  irder  vivos,  or  to  a  devise  con- 
tained in  a  last  will  and  testament.  We  come  now  to  an  estate 
■which  cannot  be  created  by  deed  or  other  assurance,  but  arises  from 
construction  of  law.  From  a  collation  of  the  definition  of  this  estate 
in  the  elementary  books,  the  revised  statutes  have  adopted  the  follow- 
ing, as  a  brief  and  accurate  description  of  the  estate,  viz :  It  is  the 
residue  of  an  estate,  left  in  the  grantor  or  his  heirs,  or  in  the  heirs 
of  a  testator,  commencing  in  possession  on  the  determination  of  a 
particular  estate  granted  or  devised.  (1  R.  S.  743,  §  12.)  It  is 
founded  on  the  principle  that  when  a  person  has  not  parted  with  his 
whole  estate  and  interest  in  a  piece  of  land,  all  that  which  he  has 
not  given  away  remains  in  him ;  and  the  possession  of  it  reverts  or 
returns  to  him  upon  the  determination  of  the  preceding  estate.  In 
such  a  case  the  residue  of  the  estate  always  continues  in  him  who 
made  the  particular  estate,  or  those  who  succeed  to  his  rights.    And 


ESTATE  IN  REVERSION.  175 

Coke  says  the  law  termeth  a  reversion  to  be  expectant  upon  the 
particular  estate ;  because  the  donor  or  lessor,  or  their  heirs,  after 
every  determination  of  any  particular  estate  doth  expect  or  look  for, 
to  enjoy  the  lands  or  tenements  again.  (Co.  Litt.  183  h.  Payn  v. 
Seal,  4  Denio,  411.) 

A  person  is  said  to  be  entitled  to,  not  seised  of  an  estate  in  reversion. 
Yet  an  estate  in  reversion  is  a  vested  interest.  The  party  entitled 
to  it  has  a  fixed  right  of  future  enjoyment.  It  is  vested  in  presenti, 
though  to  take  effect  in  possession  and  enjoyment  in  futuro.  It 
may  be  aliened  or  changed.  {Cruise's  Dig.  tit.  17,  §  13.)  Like  all 
other  expectant  estates,  it  is  descendible,  devisable  and  alienable,  in 
the  same  manner  as  estates  in  possession.  (1  R.  8.  725,  §  35.)  The 
conveyance  of  a  reversion  did  not  require  livery  of  seisin.  It  would 
pass  by  a  grant ;  though  it  is  said  that  in  England  the  most  usual 
mode  of  conveyance  of  an  estate  in  reversion  is  by  lease  and  release, 
and  bargain  and  sale.  (2  Preston  on  Abstracts,  Q5.)  Both  these 
modes  of  conveyance  are  valid  in  this  state,  being  deemed  grants ; 
which  latter  is  the  mode  of  conveyance  adopted  by  the  revised  stat- 
utes for  the  assurance  of  the  titles  of  estates  in  fee  and  freehold  in- 
terests.    (1  R.  S.  738,  §  157;  Id.  739,  §  162.) 

An  estate  in  reversion  may  lose  its  denomination  and  qualities  by 
becoming  an  estate  in  possession ;  which  may  be  accomplished  by 
the  surrender,  merger,  forfeiture  or  actual  determination  of  the  prior 
estate.  (2  Preston  on  Abst.  84)  The  surrender  of  an  estate  for 
years  will  not  extinguish  the  rent  previously  due,  whatever  effect  it 
may  have  upon  the  remedy  to  collect  what  had  previously  accrued. 
While  rent  was  distrainable,  it  was  held  that  a  surrender  of  the 
demised  premises  after  a  distress  made  for  rent  due,  would  not  ren- 
der the  distress  unlawful.     (Nichols  v.  Bailey,  2  Comst.  283.) 

The  usual  incidents  to  an  estate  of  reversion  are  said  to  he  fealty 
and  rent.  In  this  state  fealty  no  longer  exists,  and  rent  when  it  has 
been  reserved  out  of  the  particular  estate  is  so  far  an  incident  of  the 
reversion,  whether  absolutely  or  by  way  of  mortgage,  as  entitles  the 
grantee  to  the  rents  which  subsequently  accrue.  (Demarest  v.  Wil- 
lard,  8  Cowen,  206.     Burden  v.  Thayer,  3  3Ietc.  76.) 

Although  the  rent  is  incident  to  the  reversion,  it  is  not  insepara- 
bly incident.  A  grant  of  the  reversion  excepting  the  rent  will  pass 
the  reversion  alone,  and  leave  to  the  grantor  the  rent.  So  the  rent 
may  be  assigned  without  the  reversion.  (Demarest  v.  Willard, 
supra.     Co.  Litt.  143  a.)     But  the  assignment  or  grant  of  the  rever- 


176  JOIM'  AND  SEVERAL  ESTATES. 

sion  without  qualifying  words,  will  carry  with  it  the  rent  also.  (Jd. 
Co.  Litt.  151.) 

An  estate  in  reversion  expectant  on  ?ifree1iold,  is  neither  subject 
to  dower  or  curtesy ;  but  it  is  said  by  Lord  Coke  that  a  reversion 
expectant  in  an  estate  for  j'ears  is  subject  to  both.  (Co.  Litt.  29  a, 
32  a.  Cruise's  Dig.  tit.  5,  §  23 ;  tit.  6,  §  8.)  The  seisin  of  the  re- 
versioner is  not  so  affected  by  an  estate  for  years  as  to  prevent  the 
existence  of  curtesy  or  dower. 

A  reversioner  has  such  an  interest  in  the  estate  that  he  can  main- 
tain an  action  for  an  injury  to  the  inheritance.  By  statute  the  per- 
son seised  of  an  estate  in  remainder  or  reversion,  may  maintain  an 
action  of  waste  or  trespass  for  any  injury  done  to  the  inheritance,  not- 
withstanding any  intervening  estate  for  life  or  years.  (1  R.  S.  750, 
§  8.)  A  reversioner  or  remainderman  may  also  be  admitted  to  de- 
fend as  a  party  to  suits  against  the  tenant  of  the  particular  estate. 
(2  id.  339,  §§  1,  2.)  And  no  recovery  unduly  had  against  the  ten- 
ant of  the  particular  estate  can  bar  the  right  of  the  reversioner  or 
remainderman  to  restitution.     {Id.  340,  §§  6,  7.) 


CHAPTER  yil. 

OF    ESTATES   WITH    KESPECT   TO   A    SEVERAL    AND  JOINT  OWNERSHIP. 

An  estate  which  is  owned  by  a  single  individual,  whether  male  or 
female,  and  whether  a  natural  person  or  a  corporation,  is  said  to  be 
held  in  severalty.  This  applies  to  estates  of  any  quantity  of  inter- 
est or  length  of  duration,  and  whether  the  estate  be  in  possession  or 
expectancy.  This  is  the  usual  way  of  holding  real  property ;  and, 
therefore,  the  general  rules  with  respect  to  estates,  when  nothing  ap- 
pears to  the  contrary,  is  supposed  to  have  reference  to  estates  in  sev- 
eralty. But  it  often  happens  that  the  title  to  real  property  is  vested 
either  by  descent  or  purchase  in  more  individuals  than  one ;  and 
this  gives  rise  to  the  doctrine  of  joint  estates.  At  common  law  tliere 
were  three  kinds  of  joint  estates,  namely,  coparcenary,  joint  tenancy 
and  tenancy  in  common. 


COPAKCENARY— JOINT  TENANCY.  I77 

Section  I. 

Of  Estates  in  Coparcenary. 

The  estate  in  coparcenary  arose,  at  common  law,  when  lands  de  • 
scended  to  two  or  more  persons,  as  when  a  person  seised  in  fee  sim- 
ple died  and  his  next  heirs  were  two  or  more  females,  his  daughters 
sisters,    aunts,  cousins,  or  their  representatives.     In  Eno-land    by 
special  custom,  as  in  gavelkind,  the  same  estate  was  created  by  a 
descent  to  all  the  males  in  equal  degree,  as  sons,  brothers,  uncles, 
&c.     In  both  these  cases,  all  the  parceners  put  together  made  but 
one  heir,  and  had  but  one  estate  among  them.    (2  Black  Com  187 ) 
This  species  of  estate  arose  only  by  descent.     They  were  called 
.parceners    because   they  could   be   compelled   to   make   partition 
Though  they  had  a  unity  of  interest,  they  had  not  an  entirety  of 
interest.     They  were   each   entitled   to   the   whole   of  his  or   her 
share,  and  there  were  several  inheritances  on  the  death  of  either 
There  was  no  survivorship,  ov  jus  accrescendi  as  in  joint  tenancy 
Ihe  estate  was  liable  to  curtesy  and  dower:     {Litt  §§  263  264 ) 

There  is  much  curious  learning  in  the  old  books  as  to  this  estate  : 
but  It  IS  of  no  value  in  this  state,  since  our  statute  has  long  ao-o  T3ro- 
vided  that  wherever  an  inheritance  shall  descend  to  several  persons 
they  shall  take,  as  tenants  in  common,  in  proportion  to  their  respect- 
ive rights.^  (1  R.  S.  753,  §  17.  La^os  of  1786, 1  Greenlf  205,  206  ) 
And  this  IS  applicable  alike  to  both  sexes.  This  kind  of  estate  has 
not  been  created  since  the  year  1786,  and  it  probably  does  not  exist 
m  any  of  the  states  at  this  day. 

Section  II. 
Of  Estates  'in  Joint  Tenancy. 

The  estate  in  joint  tenancy  is  invariably  created  by  purchase,  and 
does  not  arise  by  descent.  It  occurred,  at  common  law,  when  lands 
or  enements  were  granted  or  devised  to  two  or  more  persons,  to 
hokl  in  fee  simple,  fee  tail,  for  life,  for  years,  or  at  will    (Litt  S  277  )" 

Before  proceeding  to  notice  the  incidents  of  this  estate  it  is  proper 
to  remark  that  by  the  law  of  this  state,  originally  passed  in  1786  and 
revised  in  1830,  every  estate  granted  or  devised  to  two  or  more  persons 

'°  Will''' 12        ''  '  ''""'"'^  '"''  "'"""^"'''  ^^^^'^  '^^'''''^^  ^''^^''^ 


178  ^OTNT  TENANCY. 

to  be  in  joint  tenancy;  but  every  estate  vested  in  executors  or 
trustees  as  such,  is  required  to  be  held  by  them  in  joint  tenancy. 
(1  R.  S.  727,  §  44.)  This  section  of  the  law  applies  as  well  to 
estates  already  created  or  vested,  as  to  estates  thereafter  to  be  granted 
or  devised.  The  estate  in  joint  tenancy  is  rarely  created  in  this 
state,  except  in  devises  or  grants  to  persons  in  a  fiduciary  capacity ; 
as  to  executors  or  trustees.  The  incidents  of  the  estate  hereafter 
noticed  have  reference  to  the  estate  when  legally  created.  At  com- 
mon law  a  devise  or  grant  to  two  or  more,  in  fee,  or  for  life,  without 
further  words,  made  them  joint  tenants.  If  the  grantor  desired  only 
to  create  a  tenancy  in  common,  he  must  so  express  it  in  the  grant 
or  devise.  Our  statute,  it  will  be  perceived,  has  reversed  the  com- 
mon law  rule,  and  made  the  estate  a  tenancy  in  common,  unless  the 
instrument  creating  the  estate  expressly  declares  otherwise,  except 
in  the  case  of  executors  and  trustees.  ' 

With  respect  to  the  properties  and  incidents  of  an  estate  in  joint 
tenancy,  it  is  to  be  observed  that  they  are  derived  from  its  unity, 
which  is  fourfold,  namely :  unity  of  interest,  unity  of  title,  unity  of 
time,  and  unity  of  possession.  (2  Black.  Com.  180.  Crahbe's  Law 
of  Beal  Property,  §  2033.)  Therefore,  joint  tenants  have  one  and 
the  same  interest,  accruing  by  the  same  conveyance,  commencing  at 
the  same  time,  and  held  by  one  and  the  same  undivided  possession. 
(Id) 

1.  The  quantity  of  interest  of  each  joint  tenant  must  be  the  same. 
One  cannot  be  tenant  for  years  and  the  other  for  life ;  one  cannot 
be  seised  of  a  freehold  in  possession  and  the  other  of  a  reversion  upon 
a  freehold.     {Co.  Litt.  188.) 

2.  Joint  tenants  must  have  a  unity  of  title.  It  must  be  created 
by  the  same  act.  One  cannot  derive  his  title  by  descent  and  the 
other  by  devise.  One  cannot  derive  his  title  by  grant  from  A.  and 
the  other  by  grant  from  B.  For  one  title  might  prove  good  and 
the  other  bad. 

3.  There  must  be  a  unity  of  time.  Each  estate  must  be  vested 
at  the  same  time  as  well  as  by  the  same  title.  The  case  put  by  Coke 
to  illustrate  this  is,  if  lands  be  demised  for  life,  the  remainder  to  the 
right  heirs  of  J.  S.  and  of  J.  N. ;  J.  S.  has  issue  and  dies,  and  J.  IT. 
has  issue  and  dies.  The  issue  in  this  case  are  not  joint  tenants,  be- 
cause the  one  moiety  vested  at  one  time,  and  the  other  moiety  vested 
at  another  time.     (Co.  Litt.  188.) 

4.  And  lastly,  there  must  be  unity  of  possession.    Joint  tenants 


JOINT  TENANCY.  I79 

are  said  to  be  seised  per  my  et  per  tout,  by  the  half  or  moiety,  and 
by  all :  that  is,  they  each  of  them  have  the  entire  possession,  as  well 
of  every  parcel  as  of  the  whole.  They  have  not,  one  of  them  a  seisin 
of  one  half  or  moiety,  and  the  other  of  the  other  moiety ;  neither 
can  one  be  exclusively  seised  of  one  acre  and  his  companion  of  an- 
other ;  but  each  has  an  undivided  moiety  of  the  whole,  and  not  the 
"whole  of  an  undivided  moiety.     (2  Bl.  Com.  182.) 

The  principal  incident  of  an  estate  in  joint  tenancy  is  i\iQ  jus  ac- 
crescendi,  or  right  of  survivorship.  Upon  the  death  of  one  joint 
tenant,  whether  the  estate  was  in  fee,  for  a  term  of  years,  or  in  trust, 
his  interest  passed  not  to  his  heirs  or  other  representatives,  but  to 
the  surviving  co-tenant  or  co-tenants.  Hence  a  joint  tenant  could 
not  devise  his  interest,  because,  as  a  will  takes  effect  only  at  the 
death  of  the  testator,  the  estate  would  pass  to  the  survivor,  and  thus 
overreach  the  will. 

The  English  common  law,  before  the  abolition  of  tenures,  favored 
title  by  joint  tenancy,  because  it  prevented  a  severance  of  estates. 
But  since  that  time,  the  reason  having  ceased,  the  courts  have  lean- 
ed against  that  estate.  In  Eigden  v.  ValUer,  (3  Atk.  731,)  Lord 
Hardwicke  held  that  the  words  "  to  hold  to  them  and  their  heirs 
equally  to  be  divided  betwixt  them,"  created  a  tenancy  in  common, 
whether  the  instrument  of  conveyance  be  a  deed  or  a  will. 

In  the  same  case  the  same  learned  chancellor  held  that  courts  of 
equity  took  great  latitude  upon  the  foot  of  intention,  and  therefore 
if  two  persons  advance  money  upon  a  mortgage,  though  the  convey- 
ance be  made  to  them  jointly,  it  shall  be  a  tenancy  in  common. 

Partners  are  joint  tenants  of  all  the  partnership  property  during 
their  lives,  and  on  the  death  of  one  the  remedy  to  recover  debts  due 
to  the  firm,  survives  to  the  survivor  or  survivors.  Littleton  says  that 
if  an  obligation  be  made  to  many  for  one  debt,  he  which  survives 
shall  have  the  whole  debt  or  duty.  And  so  it  I's  of  other  covenants 
and  contracts,  &c.  {Litt.  §  282.)  Lord  Coke,  in  his  commentary 
upon  this,  says,  an  exception  is  to  be  made  of  two  joint  merchants 
with  respect  to  whom,  by  the  law  merchant,  there  is  no  survivorship, 
l)ut  the  share  of  the  deceased  shall  not  survive,  but  go  to  his  execu- 
tors or  administrators.  This,  he  says,  is  for  the  advancement  of 
trade  and  commerce,  which  is  for  the  public  good ;  for  the  rule  is 
that/ws  accrescendi  inter  mercafores  pro  heneficio  commercii  locum 
non  habet.  This  rule  is  applicable  to  all  traders,  and  has  been  ex- 
tended to  partners  in  the  practice  of  physic,  {Allen  v.  Blanchard,  9 


180  JODTT  TENANCY— HOW  DESTROYED. 

Coiven,  631,)  and  by  parity  of  reason,  it  applies  to  all  partnerships. 
The  action  survives  but  the  interest  does  not.  (Collyer  on  Part- 
nership, &5.) 

The  statute  already  referred  to,  (1  R.  8.  727,  §  44,)  declaring  that 
a  grant  or  devise  to  two  or  more  persons  in  their  own  right,  shall  be 
a  tenancy  in  common,  unless  expressly  declared  to  be  in  joint  tenancy, 
is  not  applicable  to  an  estate  granted  or  devised  to  husband  and 
wife.  They  take  by  entireties.  They  have  not  either  a  joint  estate, 
a  sole  or  several  estate,  nor  even  an  estate  in  common.  From  the 
unity  of  their  persons  by  marriage,  they  have  the  estate  entirely  as 
one  individual,  and  on  the  death  of  one  of  them,  the  entire  tene- 
ments will  belong  to  the  survivor,  without  the  power  of  alienation 
or  forfeiture  of  either  alone,  to  the  prejudice  of  the  other.  (1  Prest. 
on  Estates,  131.  Jackson  v,  Stevens,  16  John.  110.  Shaw  v.  Hear- 
sey,  5  Mass.  R.  521.  Per  Lord  Kenyon,  in  Doe  v.  Parrott,  5  D. 
&  E.  654.) 

It  is  said  by  Littleton,  (§  291,)  that  if  a  joint  estate  be  made  of 
land  to  a  husband  and  wife  and  to  a  third  person,  the  husband  and 
wife  have  in  law  in  their  right  but  the  moiety,  and  the  other  person 
the  other  moiety.  The  reason  assigned  for  it  is,  that  the  husband 
and  wife  are  but  one  person  in  law,  and  are  in  the  like  case  as  if  an 
estate  be  made  to  two  joint  tenants,  when  one  has  by  force  of  the 
jointure  the  one  moiety  in  law,  and  the  other  the  other  moiety. 
The  same  rule  applies  to  a  larger  number  of  grantees.  The  husband 
and  wife  take  but  one  share,  and  are  treated  but  as  one  person.  {Id. 
1  Prest.  on  Estates,  132.)  And  suppose  the  other  joint  owners  all 
die  leaving  the  husband  and  wife  survivors,  the  whole  then  becomes 
their  property,  and  the  husband  and  wife  are  tenants  by  entireties. 

But  though  husband  and  wife  are,  for  certain  purposes,  treated 
as  one  person,  they  are  nevertheless  distinct  individual  persons.  If 
a  grant  of  land  be  made  to  them,  as  tenants  in  common,  without 
regard  to  their  social  union,  they  will  hold  by  moieties,  as  other  dis- 
tinct and  individual  persons  would  do.  (1  Preston  on  Estates, 
132.    2  Preston  on  Abstracts,  41.) 

There  are  several  modes  by  which  an  estate  in  joint  tenancy  may 
be  destroyed.  A  destruction  of  the  unity  of  title,  the  unity  of  in- 
terest, or  the  unity  of  possession,  will  work  out  this  consequence. 
If  one  joint  tenant  release  to  his  companion,  the  latter  becomes 
seised  in  severalty.  So  if  all  the  joint  tenants  unite  in  a  conveyance 
to  an  individual,  the  same  result  follows.     If  joint  tenants  unite  in  a 


PARTITION.  181 

conveyance  to  second  persons,  the  latter  are  tenants  in  common  un- 
less the  instrument  of  conveyance  expressly  mentions,  that  an  estate 
in  joint  tenancy  is  intended  to  be  created.  So  if  there  be  three  joint 
tenants  and  one  releases  to  one  of  his  companions  all  his  right  which 
he  has  in  the  land,  the  releasee,  with  respect  to  the  land  released, 
will  be  tenant  in  common  with  the  other  two,  and  the  latter  two 
joint  tenants  of  the  remainder.  {Littleton,  §  304.)  For  the  purpose 
of  tenure  and  survivorship,  joint  tenants  have  the  whole  estate, 
while  for  the  purpose  of  immediate  alienation  each  has  only  a  par- 
ticular part. 

At  common  law  one  joint  tenant  could  not  compel  his  companion  to 
make  partition.  By  the  statute  of  31-32  of  Henry  8,  the  writ  of 
partition  was  given,  the  first  for  estates  of  inheritance,  and  the  last 
for  estates  for  life  or  years.  These  were  re-enacted  in  this  state  in 
1788,  and  revised  in  1830,  (2  R.  S.  315,)  by  which  one  or  more  joint 
tenants  or  tenants  in  common,  whether  the  estate  be  one  of  inherit- 
ance, or  for  life  or  years,  may  compel  partition  to  be  made ;  and  this 
whether  the  parties  be  infants,  or  of  full  age,  or  whether  they  or  any 
of  them  labor  under  the  disability  of  coverture.  The  statute  con- 
tains numerous  provisions  on  the  subject  which  are  adopted  by  the 
code  of  procedure,  (§  448.)  Under  the  revised  statutes  it  has  been 
held  that  proceedings  in  partition  can  only  be  by  a  party  having  an 
estate  entitling  him  to  an  immediate  possession,  though  an  actual 
pedis  possessio  is  not  indispensable.  (Broiunell  v.  Broivnell,  19 
Wend.  367.)  The  remedy  under  the  statute  is  not  confined  to 
actions  at  law,  but  may  be  prosecuted  in  a  court  of  equity,  which  has 
been  since  the  reign  of  Elizabeth  the  tribunal  most  frequently  re- 
sorted to.  [Crime's  Dig.  tit.  18,  ch.  2,  §  38.)  Courts  of  equity,  it 
has  been  held,  have  a  general  concurrent  jurisdiction  with  courts  of 
law  in  all  cases,  as  well  by  statute  as  at  common  law.  {Smith  v. 
Smith,  10  Paige,  470.     Haywood  v.  Judso7i,  4  Barh.  228.) 

The  revised  statutes  make  suitable  provision  for  the  case  of  un- 
known owners,  (2  R.  S.  319,  §  12,)  and  respecting  the  estate  of  ten- 
ants in  dower  or  by  the  curtesy.  (Laivs  of  1847,  ch.  430,  §  5. 
3  R.  S.  609,  5th  ed.) 

The  provisions  in  relation  to  partition  are  not  applicable  to  the 
joint  estate  of  husband  and  wife,  who  hold  by  entireties,  nor  to  estates 
held  by  trustees. 

Husband  and  wife  cannot,  at  common  law,  convey  to  each  other. 
But  they  can  unite  in  a  deed  to  a  third  person  of  land  held  by  the 


182  ESTATES  IN  COMMON. 

husband  in  right  of  his  wife,  or  held  by  them  jointly ;  and  on  a  re- 
conveyance, by  the  grantee,  to  the  husband  or  the  wife,  the  latter 
grantee  will  hold  in  severalty.  {Jackson  v.  Stevens,  16  John.  110.) 
The  deed  of  the  wife,  in  these  cases,  to  be  available,  must  be  ac- 
knowledged before  a  proper  officer.  {Id.  Jackson  v.  Cairns,  20 
John.  301.     Doe  v.  Howland,  7  Coiven,  277.     GUlet  v.  Stanley, 

I  mil,  121,  125.) 

The  act  concerning  the  rights  and  liabilities  of  husband  and  wife, 
passed  on  the  20th  March,  1860,  {Laws  of  1860,  ch.  90,)  does  not 
seem  to  affect  estates  conveyed  to  husband  and  wife  jointly;  but 
leaves  unaltered  the  common  law  in  this  respect,  whatever  effect  it 
may  have  on  the  estate  of  curtesy  or  dower. 

Trustees  who  take  an  estate  either  of  real  or  personal  property  in 
trust,  hold  by  virtue  of  the  statute  in  joint  tenancy.  They  cannot 
denude  themselves  of  that  character  by  any  arrangement  between 
themselves,  nor  do  they  fall  within  the  statute  of  partition.  If,  in 
execution  of  their  trust,  it  becomes  necessary  to  alien  the  estate,  in 
whole  or  in  part,  they  must  all  unite  in  the  conveyance,  and  their 
grantee,  in  good  faith,  takes  the  estate  discharged  of  the  trust ;  and 
their  grantees,  if  there  be  more  than  one,  take  as  tenants  in  common, 
unless  it  be  otherwise  expressed  in  the  deed.     {Ridgley  v.  JohnsoUj 

II  Barb.  527.) 

Executors  and  administrators  hold  the  property  of  the  testator  or 
intestate,  cast  upon  them  by  law,  as  joint  tenants  ;  but  they  cannot, 
by  their  own  act,  make  partition  among  themselves.  Their  author- 
ity over  the  trust  fund  is,  in  general,  regulated  by  the  testamentary 
law ;  and  their  power  over  it  subject  in  a  great  degree  to  the  con- 
trol of  the  proper  surrogate's  court.     (2  B.  S.  220.) 

Section  III. 

Of  estates  in  common. 

The  usual  title  by  which  a  joint  ownership  of  estates  is  held  in 
this  state  is  by  tenancy  in  common  ;  and  it  is  invariably  so,  whether 
the  title  be  by  grant  or  devise,  unless  declared  to  be  in  joint  tenancy, 
or  it  be  vested  in  executors  or  trustees  as  such.  (1  B.  S.  727,  §  44.) 
This  estate  arises  where  two  or  more  persons  hold  lands  or  tene- 
ments in  fee  simple,  or  for  term  of  life  or  years,  by  several  titles,  and 
occupy  the  same  lands  or  tenements  in  common.  Since  the  statute, 
it  may  as  well  arise  under  a  joint  title,  as  a  several  title.     The  only 


ESTATES  IN  COMMON.  183 

unity  required  between  the  tenants  is  that  of  possession.  {Little- 
ton, §  292.) 

This  estate  may  be  created  by  the  destruction  of  an  estate  in  joint 
tenancy,  as  well  as  by  an  express  limitation  in  a  deed,  or  by  a  grant 
or  devise  to  several  without  expressing  that  the  grant  or  devise  is 
in  joint  tenancy. 

There  is  no  survivorship  among  tenants  in  common,  and  there- 
fore, on  the  death  of  one,  his  interest,  if  it  be  an  inheritable  interest, 
goes  to  his  heirs,  who  thus  become  tenants  in  common  among  each 
other  with  respect  to  that  share,  and  tenants  in  common  with  the 
survivors  with  respect  to  the  whole  estate ;  their  interest  being  lim- 
ited to  that  of  their  ancestor. 

Tenants  in  common  may  have  several  distinct  estates,  either  of  the 
same  or  of  a  different  quantity,  in  any  subject  of  property,  real  or  per- 
sonal, in  equal  or  unequal  shares,  and  either  by  the  same  act  or  by  sev- 
eral acts.  The  estate  differs  from  that  of  joint  tenancy,  in  this  among 
other  respects.  Joint  tenants  have  one  estate  in  the  whole,  and  no  es- 
tate in  any  particular  part ;  they  have  the  power  of  alienation  over  their 
respective  aliquot  parts,  and  by  exercising  that  power,  may  give  a  sep- 
arate and  distinct  right  to  their  particular  parts.  Tenants  in  common 
have  several  and  distinct  estates  in  their  respective  parts.  Each 
tenant  in  common  has,  in  contemplation  of  law,  a  distinct  tenement, 
a  distinct  freehold,  &c.  (1  Preston  on  Estates,  139.)  Unity  of 
tenure  in  the  different  portions  of  the  land  is  not,  nor  is  unity  of 
estate  necessary  to  a  tenancy  in  common.  Unity  of  right  of  posses- 
sion merely  is  all  that  is  required.  {Per  Wahvorth,  Ch.  in  Putnam 
V.  Ritchie,  6  Paige,  398.) 

The  widow,  with  respect  to  her  dower,  before  assignment,  is  not  a 
tenant  in  common  with  the  heir.  Her  right  rests  in  action  only. 
{Jackson  v.  O'Donaghy,  7  John.  249,  per  Van  Ness,  J.)  After  the 
assignment  of  her  dower,  she  holds  it  in  severalty  by  operation  of 
the  statute. 

One  tenant  in  common  cannot,  as  against  the  rights  of  his  asso- 
ciates, convey  a  distinct  portion  of  the  estate  by  metes  and  bounds ; 
nor  can  a  judgment  creditor  of  one  tenant  in  common,  sell  by  exe- 
cution a  distinct  portion  of  the  estate  discharged  of  the  right  of  the 
other  tenants  in  common.  (Bartless  v.  Harlow,  12  Mass.  B.  348. 
Porter  v.  Hill,  9  id,  34.) 

Although  partners  hold  their  partnership  stock  in  joint  tenancy, 
BO  far,  at  least,  as  the  remedy  is  concerned,  it  is  otherwise  witL  re- 


184  ESTATES  IN  COMMON. 

gard  to  real  estate.  Such  estate,  fhough  held  for  the  purposes  of 
the  partnership,  is  in  general  held  not  as  partners  but  as  tenants  ia 
common,  and  the  rules  relative  to  partnership  property  do  not  apply 
to  it.  Hence  one  partner  can  onl}^  sell  his  individual  interest,  and 
when  both  join  in  the  sale  and  conveyance,  and  one  only  receives 
the  purchase  money,  the  other  may  maintain  an  action  against  him 
for  his  proportion.  {Coles  v.  Coles,  15  John.  159.  Balmain  v. 
Shore,  9  Ves.  500,  508.) 

A  deed  of  conveyance  by  one  tenant  in  common  to  a  stranger,  of 
his  entire  interest  in  the  land,  though  drawn  as  though  he  owned 
the  whole,  will  be  effectual  to  convey  his  undivided  interest,  and 
works  no  injury  to  his  companion. 

One  tenant  in  common  cannot  sue  his  co-tenant  to  recover  docu- 
ments relative  to  their  joint  estate.  (Cozoes  v.  Hawley,  12  John. 
484.)  Nor  can  he  recover  for  repairs,  from  his  co-tenant,  without  a 
previous  request  and  refusal  of  the  co-tenant  to  join  in  making  them. 
{Mumford  v.  Broiver,  6  Coiven,  475.)  Nor  is  he  affected  by  a  loca- 
tion of  the  land  by  his  co-tenant  unless  he  acquiesces,  and  acquies- 
cence will  not  be  presumed  from  mere  lapse  of  time.  {Jackson  v. 
Moore,  6  Cowen,  706.)  This  principle  does  not  seem  to  be  affected 
by  the  subsequent  reversal  of  the  above  case.     (4  Wend.  58.) 

With  respect  to  the  acts  which  one  tenant  in  common  may  do,  and 
bind  his-  co-tenant,  it  has  been  held,  that  before  distress  and  avow- 
ry, he  may  receive  the  whole  rent,  and  discharge  the  lessee.  {Deck- 
er v,  Livingston,  15  John.  479.)  When  the  lands  of  tenants  ia 
common  were  taken  by  the  state  and  appropriated  for  the  canal,  and 
the  appraised  damages  were  paid  to  one,  it  was  held  that  he  was  lia- 
ble to  account  to  the  others  for  their  proportion.  {Brinkerhoff  v. 
Wemple,  1  Wend.  470.) 

A  tenant  in  common  in  possession  accounting  with  his  co-tenants 
is  chargeable  only  with  the  net  rents  and  profits,  after  deducting  for 
necessary  repairs,  and  taxes,  and  assessments.  {Hanna  v.  Oshorny 
4  Paige,  336.) 

There  may  be  a  tenancy  in  common  of  chattel  interests.  A  let- 
ting of  land  upon  shares  makes  the  parties  tenants  in  common  of  the 
crops  raised  under  the  agreement.  [Demott  v.  Hagaman,  8  Coiven, 
220.  Caswell  v.  Districh,  15  Wend.  379.  Putnam  v.  Wise,  1  Hill, 
234.)  But  a  person  who  raises  a  crop  of  corn  on  the  land  of  another, 
on  an  agreement  to  give  the  owner  a  certain  number  of  bushels  of 
corn  by  way  of  rent,  is  not  a  tenant  in  common  of  the  crop  with  the 


PARTITION".  185 

owner  of  the  land.  He  owns  the  crop  in  severalty,  and  the  owner 
of  the  land  is  entitled  only  to  his  rent,  the  amount  of  which  is  as- 
certained by  the  value  of  the  corn.  (Newcomb  v.  Agaii,  2  John. 
421,  n.)  The  owner  of  the  land  has  no  lien  upon  the  specific  corn, 
for  the  rent  may  be  paid  in  any  corn.     {Id.) 

One  tenant  in  common  of  a  chattel  cannot  maintain  trespass  or 
trover  against  the  other,  unless  the  thing  held  in  common  be  de- 
stroyed. {Selden  v.  Hiclcock,  2  Cain.  166.  St  John  v.  Standring, 
2  John.  468.  Wilson  v.  Reed,  3  id.  175.  Mersereau  v.  Norton,  15 
id.  179.)  But  he  may  recover,  in  a  proper  action,  half  of  the  money 
received  by  the  other  owner  in  common  on  the  sale  of  the  property. 
(Id.     Cochran  v.  Carrington,  25  Wend.  409.) 

The  mere  sale  by  one  tenant  in  common,  of  the  entir'j  chattel,  is 
in  itself  a  conversion,  and  entitles  his  co-tenant  to  an  action.  ( White 
v.  Osborn,  21  Wend.  72.)  When  several  persons  voluntarily  mingle 
their  wheat  in  a  common  bin,  they  become  tenants  in  common,  and 
the  sale  of  the  entire  mass  by  one  of  them,  subjects  him  to  an  ac- 
tion.    [Nowlen  v.  Colt,  6  Hill,  461.) 

Though  the  sale  of  the  whole  chattel  by  one  tenant  in  common, 
without  the  consent  of  his  co-tenant,  is  a  conversion,  yet  one  tenant 
in  common  may  sell  the  whole  chattel,  for  the  benefit  of  all,  and 
they  may  ratify  his  act  by  joining  in  an  action  for  the  price.  {Put- 
nam V.  Wise,  1  Hill,  234.)  The  subsequent  ratification  is -equiva- 
lent to  an  original  authority ;  and  the  sale  by  one  thus  becomes  tho 
sale  by  all. 

Many  of  the  incidents  of  an  estate  in  joint  tenancy  are  applicable 
to  a  tenancy  in  common.  They  can  make  partition  by  their  volun- 
tary act,  each  conveying  to  the  other  by  a  deed  of  grant  or  release, 
the  proportion  to  which  he  is  entitled.  They  will  thus  own  their 
respective  shares  in  severalty. 

But  if  any  one  is  unwilling  voluntarily  to  sever  his  interest  from 
that  of  the  others,  he  can  be  compelled,  as  matter  of  right,  to  make 
partition,  by  the  common  law,  as  well  as  by  the  statute  referred  to 
in  the  preceding  section.  (Smith  v.  Siyiith,  10  Paige,  470.  3  B.  S. 
602,  5th  ed.     Code  of  Procedure,  §  448.) 

There  are  cases  in  which  a  partition  of  the  lands  and  tenements, 
held  in  common,  cannot  be  made  by  metes  and  bounds,  without  great 
prejudice  to  the  owners.  In  such  a  case  the  court  may  order  a  sale 
of  the  premises,  at  public  auction,  to  the  highest  bidder,  and  pay 
the  proceeds,  after  deducting  the  costs  and  charges,  to  the  respective 


X86  PARTITION. 

parties,  according  to  their  respective  interest  in  the  funil.  (3  i?.  S. 
611,  §  46-54,  5th  ed.)  This  course  may  be  adopted  with  respect 
to  any  distinct  lot,  tract  or  portion  of  the  premises  of  which  parti- 
tion is  sought.  The  sale  may  be  for  cash,  or  upon  a  credit  for  por- 
tions of  the  purchase  money,  and  upon  such  security  as  the  court 
may  direct.     {Id.) 

Where  the  real  estate,  of  which  partition  was  sought,  consisted 
of  a  mill  dam,  and  the  lands  overflowed  by  the  mill  pond,  constituting 
the  water  power,  which  was  necessary  for  the  use  of  various  mills 
which  belonged,  in  severalty,  to  the  respective  tenants  in  common 
of  such  dam  and  pond,  it  has  been  held  that  an  actual  partition  of 
the  water  power  should  be  made,  instead  of  a  sale  thereof,  if  the 
whole  water  power  in  connection  with  the  mill  property,  held  in 
severalty  by  either  party,  would  not  be  worth  more  than  the  same 
water  powier  equally  divided  by  a  proper  partition  thereof,  the  one 
half  to  be  used  by  the  mills  of  each,  in  the  hands  of  different  pro- 
prietors. (Smith  V.  Smith,  10  Paige,  470.)  In  the  same  case  it 
was  held  that  the  commissioners  assigned  to  make  partition  might 
divide  the  mill  dam,  and  the  lands  under  the  same  and  under  the 
waters  of  the  pond,  and  might  make  such  provision  for  kfieping  the 
different  portions  of  the  dam  and  of  the  water  gates  and  flumes  in 
repair,  and  such  regulations  for  the  use  of  the  water  power,  which 
was  not  capable  of  actual  partition  without  a  destruction  of  its 
value,  as  the  parties  themselves  might  make,  by  a  partition  deed 
of  the  same  property.  And  the  Chancellor  thought,  that  in  making 
partition  of 'real  property,  the  commissioners  might  assign  a  portion 
of  the  premises  held  in  common,  to  one  of  the  parties,  charged  with 
a  servitude,  or  easement  for  the  benefit  of  another  party,  to  whom  a 
distinct  portion  of  the  premises  was  assigned  in  severalty.     (Id.) 

Where  any  of  the  defendants  in  partition  are  absentees,  or  in- 
fants, or  unknown,  the  court,  before  making  the  decree,  will  see  that 
all  proper  persons  are  before  it,  so  as  to  make  the  decree  eff'ectual. 
{BraJcer  v.  Devereaux,  8  Paige,  513.)  In  like  manner,  proper  mea- 
sures should  be  adopted  by  the  court,  to  ascertain  general  liens  or 
encumbrances  on  the  undivided  shares  or  interests  of  the  parties, 
before  making  a  decree  of  sale.  (2  P.  S.  418,  §  43.  Wilde  v.  Jen- 
kins, 4  Paige,  48.) 

It  is  not  indispensable  that  all  the  shares  should  exactly  corres- 
pond in  value ;  but  one  party  may  be  decreed  to  make  compensation 
to  another  for  equality  of  partition.     {Smith  v.  Smith,  supra.   Lar- 


PARTITION— ACCOUNT.  187 

hin  V.  Mann,  2  Paige,  27.)  Equity,  it  has  been  held,  may  direct  a 
partition  for  the  purpose  of  setting  off  one  of  the  co-tenant's  shares, 
and  decree  a  sale  of  the  residue  for  the  benefit  of  the  other  tenants, 
providing  for  compensation  in  case  of  inequality  of  partition. 
(Haywood  v.  Judson,  4  Barb.  228.) 

Courts  of  equity  exercise  a  beneficent  authority  with  respect  to 
improvements  erected  by  one  in  good  faith  on  the  common  property. 
Where  a  tenant  in  common,  believing  himself  entitled  to  the  whole 
premises,  erected  valuable  buildings,  an  equitable  partition  was  di- 
rected that  should  give  him  the  benefit  of  them.  {Town  v.  Need- 
ham,  3  Paige,  545.) 

On  the  same  principle  it  was  held  in  Green  v.  Putnam,  (1  Barb. 
500,)  that  where  one  tenant  in  common  makes  improvements  on  the 
land,  a  court  of  equity  in  making  partition  will  decree  an  account 
and  compensation,  or  else  assign  to  him  the  part  of  the  premises  on 
which  the  improvements  have  been  made  ;  and  it  is  not  necessary  to 
show  the  assent  of  the  co-tenants,  nor  a  request  and  refusal  to  join 
in  the  improvements.  It  is  obvious,  however,  that  in  such  a  case, 
the  improvements  should  have  been  made  in  good  faith.  A  court 
of  equity  administers  its  relief  ex  e^-wo  et  bono,  according  to  its  own 
notions  of  general  justice  and  equity  between  the  parties.  It  will 
adjust  by  its  decrees,  all  the  equitable  rights  of  the  parties  interested 
in  the  premises.  It  is  not  restrained  as  a  court  of  law  is,  to  a  mere 
partition  of  the  lands  between  the  parties,  according  to  their  interests 
in  the  same,  and  having  a  regard  to  the  true  value  thereof  {Per 
Paige,  in  Green  v.  Putnam,  supra.) 

Though  the  statute  of  limitations  is  applicable  to  an  action  at 
law  by  one  tenant  in  common  against  his  co-tenant  for  repairs ;  or 
to  an  action  of  account  or  bill  in  equity  between  tenants  in  common, 
when  one  tenant  in  common  has  received  more  than  his  just  propor- 
tion of  the  profits,  it  is  not  applicable  to  the  equitable  rights  of  a 
tenant  in  common  to  an  allowance  for  improvements  made  by  him, 
on  a  partition  of  the  premises  in  equity.  {Per  Paige,  J.  supra.) 
And  as  law  and  equity  are  now  administered  by  the  same  tribunal 
and  in  the  same  action,  it  would  seem  that  these  principles  have  a 
general  application. 

At  common  law  one  tenant  in  common  or  joint  tenant  could  not 
even  compel  his  co-tenant  to  account  to  him  for  taking  more  than 
his  share  of  the  profits,  unless  he  could  show  he  had  made  him  his 
bailiff  or  receiver.     {Co.  Litt.  200  b.)     This  defect  of  the  common 


X88  CONTRIBUTION  FOR  REPAIRS. 

law  has  been  remedied  by  statute.  An  action  of  account  at  law  can 
now  be  maintained,  where  one  tenant  in  common  or  joint  tenant 
has  received  more  than  his  just  proportion  of  the  profits.  {Green 
V.  Putnam,  sujjra.  1  R.  S.  750,  §  9.)  But  the  statute  does  not 
apply  to  a  case  where  one  tenant  in  common  occupies  himself  the 
entire  premises,  without  any  agreement  with  the  others  as  to  his 
possession,  or  any  demand  on  their  part  to  be  allowed  to  enjoy  the 
premises  with  him.  ( Wodever  v.  Knajjp,  18  Barh.  265.  Hender- 
son V.  Eason,  9  Ung.  L.  and  E.  337.  McMahon  and  loife  v.  Bur- 
chell,  2  Phil.  Pi.  127.  22  Eng.  Ch.  Rep.  125.)  The  remedy  in  such  a 
case  is  for  the  co-tenant,  if  he  has  been  dispossessed,  to  resort  to  an 
appropriate  action ;  and  if  not  forcibly  expelled,  he  should  demand 
to  be  admitted  into  the  enjoyment  of  his  share  of  the  premises,  and 
on  being  refused  he  should  resort  to  an  action  for  such  refusal. 
(Erivin  v.  Olmsiead,  7  Cowen,  229.) 

One  of  the  evils  inseparable  from  a  joint  ownership  of  an  estate, 
is  that  the  individuals  will  be  apt  to  feel  less  interest  and  solicitude 
for  its  preservation,  than  if  each  owned  the  same  property  in  seve- 
ralty. The  common  law  was  extremelj'-  deficient  in  this  respect. 
It  favored,  indeed,  the  maintenance  of  houses  for  the  habitation  of 
mankind,  pro  bono  publico.  And  therefore,  if  there  be  two  tenants 
in  common  or  joint  tenants  of  a  house  or  mill  which  has  fallen  to 
decay,  and  the  one  was  willing  to  repair  the  same  and  the  other  not, 
the  common  law  gave  the  writ  de  reparatione  facienda,  the  language 
of  which  was,  ad  reparationem,  sustentationem  ejusdem  domus  tene- 
antur.  {Co.  Lit.  54  i;  Id.  200.)  But  the  writ  did  not  extend  to  other 
improvements  which  might  be  greatly  for  the  benefit  of  the  estate, 
such  as  repairing  or  renewing  the  fences,  erecting  buildings  where 
none  before  existed,  clearing  up  wild  land  and  preparing  it  for  agri- 
cultural purposes,  and  the  like. 

In  Mumford  v.  Broion,  (6  Coioen,  475,)  it  was  settled  in  this 
state,  that  even  for  a  necessary  repair  to  the  land,  without  the  pre- 
vious request  to  join  in  the  repairs  made,  and  a  refusal  so  to  do,  no 
action  could  be  sustained.  The  chief  justice  (Savage)  thought  that 
till  request  to  join  in  the  repairs,  and  a  refusal,  both  tenants  were  in 
equal  fault,  one  having  as  much  reason  to  complain  as  the  other. 

The  duty  of  contribution,  where  expenses  have  been  necessarily 
incurred  and  paid  by  one  tenant  in  common,  for  the  benefit  of  the 
common  property,  results  from  the  plainest  principles  of  equity. 
No  one  should  enjoy  a  benefit  -without  sharing  in  the  burden  by 


INCORPOREAL  HEREDITAMENTS.  189 

which  it  is  obtained.  There  is,  indeed,  some  danger  in  permitting 
one  tenant  in  common  to  make  improvements  without  request  and 
without  notice.  He  may  thus  incur  expenses  disproportionate  to 
the  value  of  the  property.  And  the  character  of  the  improvements 
may  be  a  just  matter  of  dispute  between  the  parties.  A  partition, 
or  sale  of  the  property  under  a  decree  of  the  court,  is  the  last  and 
final  remedy. 


CHAPTER  VIII. 

OF  INCORPOKEAL  HEREDITAMENTS. 

In  the  second  chapter  of  this  treatise  we  observed  that  the  most 
comprehensive  definition  of  real  property,  was  into  lands,  tenements 
and  hereditaments.  After  defining  lands  and  tenements,  we  remark- 
ed that  hereditaments  is  a  term  of  larger  import  than  lands  or  ten- 
ements, as  it  comprehended  whatsoever  could  be  inherited,  whether 
corporeal  or  incorporeal,  real,  personal  or  mixed.  We  then  divided 
real  property  into  corporeal  and  incorporeal  hereditaments.  {Lay- 
men V.  Abiel,  16  John.  32.)  We  have,  in  the  preceding  chapters, 
treated  of  corporeal  hereditaments,  in  various  aspects,  and  it  is  now 
proposed,  in  this  chapter,  to  treat  of  incorporeal  hereditaments. 

An  incorporeal  hereditament  is  defined  to  be  a  right  issuing  out 
of  a  thing  corporate,  whether  real  or  personal,  or  concerning,  or  an- 
nexed to,  or  exercisable  within  the  same.     (2  Bl  Com.  20.) 

This  species  of  property  embraces  a  larger  number  of  particulars, 
in  England,  than  in  this  country.  The  institutions  of  the  former 
create  some  rights  and  duties  which  are  inapplicable  to  our  circum- 
stances and  condition. 

The  English  books  of  authority  generally  divide  incorporeal  here- 
ditaments into  ten  sorts,  viz  :  advowsons,  tithes,  corodies,  ofiices, 
dignities,  commons,  ways,  franchises,  annuities  and  rents.  The  three 
first  owe  their  origin  and  importance  to  their  church  establishment ; 
the  next  two,  viz  :  ofiices  and  dignities,  are  mainly  concerning  their 
nobility ;  and  none  of  them  have  any  but  an  historical  interest  to 
an  American  lawyer.  It  is  not  proposed  to  discuss  them  in  the  pres- 
ent work.  The  remaining  five,  viz :  commons,  ways,  franchises,  an- 
nuities and  rents,  exist  in  this  country,  and  are  governed  by  the 
principles  of  the  common  law,  as  modified  by  our  statutes.     It  is 


190  OF  COMMONS. 

proposed  to  treat  of  them  very  briefly  in  this  chapter,  under  separate 
sections.  We  shall  also  add  some  obervations  on  the  right  to  air 
and  light,  and  to  some  other  easements  which  properly  belong  to 
this  branch  of  the  law. 

Section  I. 
Of  Commons. 

Common  imports  a  right  or  privilege  to  take  a  profit  in  common 
with  many.  It  is  of  three  kinds  :  appendant^  appurtenant,  and  in 
gross. 

Common  appendant  is  a  right  annexed  to  the  owner  or  possessor 
of  land  to  feed  his  beasts,  or  take  wood,  &c.  (2  Blach.  Com.  38. 
1  Grahhe  on  Real  Property,  268.)  Common  apjnirtenant  does  not 
arise  from  any  connection  of  tenure,  but  must  be  claimed  by  grant 
or  prescription.  Common  in  gross  is  a  right  not  annexed  to  the 
land,  but  to  the  person,  and  must  be  claimed  by  grant  or  prescrip- 
tion.    {Id.     Crime's  Big.  tit.  23,  §  19.) 

The  subject  has  been  occasionally  discussed  in  the  courts  of  this 
state.  It  was  explained  by  Savage,  chief  justice,  in  delivering  the 
opinion  of  the  court  in  Van  Bensselaer  v.  Badcliff,  (10  Wend.  647.) 
He  thus  speaks  of  this  branch  of  the  law :  "  Common  or  a  right  of 
common,  is  a  right  or  privilege  which  several  persons  have  to  the 
produce  of  the  lands,  or  waters  of  another.  Thus,  common  of  pas- 
ture is  a  right  of  feeding  the  beasts  of  one  person  on  the  lands  of 
another ;  co  nmon  of  estovers  is  the  right  a  tenant  has  of  taking 
necessary  wood  and  timber,  from  the  woods  of  the  lord,  for  fuel, 
fencing,  &c. ;  common  of  turbary  and  piscary  are,  in  like  manner, 
rights  which  tenants  have  to  cut  turf  or  take  fish  in  the  grounds  or 
waters  of  the  lord.  All  these  rights  of  common  were  originally  in- 
tended for  the  benefit  of  agriculture,  and  for  the  support  of  the  fam- 
ilies and  cattle  of  the  cultivators  of  the  soil.  They  are,  in  general, 
either  appendant  or  appurtenant  to  houses  and  lands.  There  is 
much  learning  in  the  books  relative  to  the  creation,  apportionment, 
suspension  and  extinguishment  of  these  rights,  which,  fortunately, 
in  this  country,  we  have  but  little  occasion  to  explain ;  but  few 
manors  exist  among  us  as  remnants  of  aristocracy  not  yet  entirely 
eradicated.  These  common  rights  which  were  at  one  time  thought 
to  be  essential  to  the  prosperity  of  agriculture,  subsequent  experi- 
ence, even  in  England,  has  shown  to  be  prejudicial.     In  this  country 


OF  COmiONS.  191 

such  rights  are  uncongenial  to  the  genius  of  our  government,  and 
the  spirit  of  independence  which  animates  our  cultivators  of  the  soil. 
In  our  state,  however,  we  have  the  manors  of  Livingston  and  of 
Kensselaerwyck,  and  some  others,  in  which  these  rights  have  existed, 
and  to  some  extent  do  exist,  and  we  are  obliged  to  look  into  the  doc- 
trine of  commons  to  ascertain  the  rights  of  parties  and  do  justice 
between  them." 

Cases  growing  out  of  rights  to  common  are  less  frequent  now  than 
at  the  time  the  chief  justice  delivered  the  foregoing  remarks. 

Common  ot pasture  is  the  principal  of  these  rights,  and  therefore 
most  of  the  cases  in  the  books  relate  to  that  species  of  common. 
This  species  of  common  is  apportionable.     {Id.) 

Common  of  estovers  cannot  be  apportioned ;  and  if  a  person  en- 
titled to  common,  convey  his  land  to  which  it  is  appurtenant,  part 
to  one  person  and  part  to  another,  the  right  is  extinguished.  {Id. 
Livingston  v.  Ketchum,  1  Bark  592.)  The  principle  which  runs 
through  the  cases  is,  that  the  land  which  gives  a  right  of  common 
to  the  owner,  shall  not  be  so  alienated  as  to  increase  the  charge  or 
burden  of  the  land  out  of  which  common  is  to  be  taken,  and  that 
when  the  right  is  extinguished  or  gone,  as  to  a  portion  of  the  land 
entitled  to  common,  it  is  extinct  as  to  the  whole  ;  for  in  such  a  case, 
common  appurtenant  cannot  be  extinct  in  part,  and  be  in  esse  for 
part,  by  the  act  of  the  parties.  {Per  Spencer,  Ch.  J.  in  Livingston 
V.  Tenbroek,  16  John.  26.) 

The  grantee  of  a  right  of  common  in  gross,  and  without  number, 
may  alien  it,  and  if  he  fails  to  do  so,  it  descends  to  his  heirs ;  but 
he  cannot  alien  it  in  such  a  way  as  to  give  the  entire  right  to  several 
persons,  to  be  enjoyed  by  each  separately.  Where  it  descends  to 
several  persons  as  tenants  in  common,  it  cannot  be  divided  between 
them,  but  it  must  be  enjoyed  jointly.  One  of  the  tenants  alone 
cannot  convey  it  to  a  stranger,  though  all,  by  joining  in  the  convey- 
ance, may  convey  the  right,     {Layman  v.  Aheel,  16  John.  30.) 

There  is  a  right  somewhat  analogous  to  common  appendant, 
claimed  by  the  inhabitants  in  the  rural  districts,  of  permitting  their 
cattle,  horses  or  sheep  to  go  at  large  on  the  highways,  at  certain 
seasons  of  the  year. 

Pa-ior  to  1830  the  courts  pretty  uniformly^  held  that  the  public 
had  simply  a  right  of  passage  over  the  highway,  and  no  right  to  de- 
pasture it.     The  owner  of  the  land  was  treated  then  as  he  is  now,  aa 


192  COMMONS  ON  HIGHWAY. 

the  owner  of  the  soil,  the  timber  and  the  grass ;  and  it  was  hence 
inferred  that  the  towns  had  no  right  to  make  any  regulation  for  the 
pasturing  of  the  highway  by  domestic  animals.  {Hallady  v.  March^ 
3  Wend.  147.  Jackson  v.  Hathaioay,  15  John.  453.  Gedney  v. 
Earle,  12  Wend.  98.  Tonawanda  Rail  Road  Co.  v.  MungeVy 
5  Demo,  264.)  In  some  of  the  cases  the  right  of  the  towns  to  make 
regulations  was  denied  on  the  ground  that  the  public  paid  the  owner, 
on  laying  out  a  road,  only  for  the  easement  of  a  way — a  mere  right 
of  passage.  If  we  assume  that  to  be  the  law,  it  would  seem  to  fol- 
low, from  principle,  that  the  public  should  not  be  permitted  to  en- 
joy that  for  which  they  had  made  no  compensation. 

This  question  was  examined  by  the  supreme  court  in  the  fourth 
district  in  1849,  in  Griffin  v.  Martin,  (7  Barb.  297,)  and  the  ma- 
jority held  that  the  act  which  authorized  town  meetings  to  determ- 
ine the  times  and  manner  in  which  cattle,  horses,  or  sheep  shall  be 
permitted  to  go  at  large  on  highways,  was  not  in  conflict  with  the 
constitution,  which  forbids  the  taking  of  private  property  for  public 
use  without  just  compensation.  The  court  thought  the  act  relative 
to  towns,  and  that  relative  to  highways,  should  be  construed  to- 
gether as  if  part  of  one  system ;  and,  therefore,  at  least  since  1830, 
when  the  soil  is  taken  for  a  highway,  the  compensation  that  is  made 
for  it  is  not  only  for  the  right  of  passage,  but  also  for  the  right  of 
pasturage  for  cattle,  horses  and  sheep,  at  such  times  and  in  such 
manner,  as  the  electors  of  each  town,  at  their  annual  town  meeting, 
may  prescribe.  Compare  act  relative  to  Mghivays  (1  R.  S.  513, 
§§  54  to  101,  with  the  act  relative  to  toivn  meetings,  &c.  1  R.  S.  340, 
§  5,  sub.  11.)  This  view  of  the  subject  was  not  suggested  to  the 
learned  judge  who  delivered  the  opinion  in  White  v.  Scott,  (4  Barb. 
56,)  nor  was  it  material  for  him  to  decide  the  question.  His  observ- 
ations on  the  power  of  the  towns,  though  entitled  to  high  respect, 
are  not  of  controlling  authority.  But  the  case  of  Griffin  v.  3Iartin 
■was  approved  by  the  supreme  court  in  the  third  district,  in  Hard- 
enburgh  v.  Lockioood,  (25  Barb.  9-12.)  Indeed,  the  learned  judge 
who  delivered  the  'opinion  in  the  last  case,  went  further  than  the 
court  in  Griffin  v.  Martin.  He  held,  upon  sound  reasoning,  that 
the  right  to  allow  cattle,  horses  and  sheep  to  go  at  large  on  high- 
ways, is  one  of  the  easements  or  servitudes  pertaining  to  the  land 
occupied  as  a  highway.  The  right,  he  observes,  is  supported  by 
usage  as  old  as  the  history  of  our  country.  The  owner  may  well  be 
presumed  to  have  been  compensated  for  this  as  well  as  for  every 


WAYS.  193 

other  easement  or  servitude  to  which,  the  land,  as  a  highway,  is  sub- 
jected. It  was  shown,  in  Griffin  v.  Martin,  that  since  1830  there  is 
in  fact  a  compensation  paid  for  both  easements. 

This  species  of  common  is  more  like  common  because  of  vicinage^ 
than  any  other.  This  latter  is  said  to  be  where  two  townships  which 
lie  contiguous  to  each  other,  have  usually  intercommoned  with  one 
another;  the  beasts  of  the  one  straying  mutually  into  the  other's 
fields  without  any  molestation  from  the  other.  It  is  called  b, permis- 
sive rigid,  intended  as  an  excuse  from  what  is,  in  strictness,  a  trespass 
in  both.     {Cruise's  Dig.  title  23,  §  15.) 

There  are  various  ways  by  which  a  right  of  common  may  be  ex- 
tinguished. 1.  It  may  be  done  by  a  release  of  it  to  the  owner  of  the 
land ;  2.  By  unity  of  possession  of  the  land ;  and  3,  By  severance 
of  the  right  of  common. 

With  regard  to  the  first  mode,  by  release,  it  has  been  said  that  if 
the  commoner  releases  any  part  of  the  land  from  the  right  of  common, 
it  will  operate  as  an  extinguishment  of  the  right  in  every  other  part. 
This  is  the  consequence  of  the  entirety  of  the  right,  throughout  the 
whole  land,  subject  to  it. 

2.  To  constitute  a  unity  of  possession  that  will  extinguish  a  right 
of  common,  the  person  must  have  an  estate  in  the  land  to  which  the 
common  is  annexed,  and  in  that  where  the  right  of  common  exists, 
equal  in  duration,  and  all  other  circumstances  of  right. 

3.  A  severance  takes  place  so  as  to  extinguish  the  right  of  com- 
mon, when  the  common  was  annexed  to  a  messuage  or  tenement, 
and  the  owner  conveys  away  the  messuage  or  tenement,  excepting 
the  common.  This  creates  an  extinguishment  of  the  common. 
{Cruise's  Dig.  title  23.) 

A  right  of  common,  which  has  been  extinguished  by  unity  of  pos- 
session may  be  revived  by  a  new  grant.     {Id.) 

The  remedy  for  a  disturbance  of  any  right  of  common  is  by  a  civil 
action,  under  the  code  of  procedure,  according  to  the  nature  of  the 
injury  and  the  relief  sought. 

Section  II. 

Of  Ways. 

A  right  of  way  is  the  privilege  which  one  or  more  persons  enjoy 
of  going  over  another  person's  land.     It  is  an  incorporeal  heredita- 

WlLL.— 13 


194  WAY  OF  NECESSITY. 

ment,  savoring  of  the  realty,  and  is  entirely  distinct  from  public 
highways  leading  from  town  to  town. 

The  right  of  way  over  another  man's  soil  may  be  claimed  in  vari- 
ous ways.  1.  By  grant ;  as  where  the  owner  of  a  piece  of  land  grants 
to  another  the  liberty  of  passing  over  his  lands  in  a  particular  direc- 
tion.    The  grantee  thereby  acquires  a  right  of  way  over  these  lands. 

2.  It  may  arise  from  an  exception  and  reservation  to  the  grantor, 
who  parts  with  his  estate  in  other  respects  to  the  grantee.  Thus, 
where  B.  was  seised  in  fee  of  an  alley  in  a  certain  village  leading 
from  the  public  highway  to  his  other  lands,  granted  the  same  in  fee, 
"  excepting  and  7'eserving  in  and  out  of  the  said  granted  lot,  &c.  to 
the  said  B.,  his  heirs  and  assigns,  a  right  of  way,  as  well  a  foot  way 
as  a  horse  way,  and  a  way  for  his  and  their  carts,  carriages  and  ser- 
vants, in,  out  and  through  the  granted  lot,  at  all  times,"  and  pro- 
tecting the  enjoyment  of  the  way  by  a  condition,  it  was  held  that 
this  was  a  valid  exception  and  reservation,  and  that  the  grantor 
could  maintain  ejectment  for  the  whole  land  on  a  breach  of  the  con- 
dition by  the  grantee.  (Jackson  v.  A  lien,  3  Cowen,  220.)  Although  a 
new  trial  was  granted  in  that  case,  it  was  not  upon  the  ground  that  the 
exception  or  condition  was  invalid,  but  for  a  misdirection  of  the  judge. 

3.  The  right  of  way  may  arise  by  p)res\^ription  and  immemorial 
usage.  Parol  evidence  of  twenty  years'  uninterrupted  use,  adverse 
or  in  hostility  to  the  owner  of  the  land,  will  authorize  the  yiference 
of  a  grant ;  for  a  right  of  prescription  supposes  a  grant  to  have  been 
originally  made  of  the  way.  {Hamilton  v.  White,  4  Barb.  61,  per 
McCoun,  P.  J.  delivering  opinion  of  Sup.  Court,  2d  district.  Lan- 
sing V.  Wiswall,  5  Denio,  213.  Williams  v.  Sqfford,  7  Barb.  313* 
1  Saund.  323,  n.  6.) 

4.  A  right  of  way  over  another  man's  land  may  arise /row  neces- 
sity. Thus,  if  a  man  having  a  close  surrounded  by  his  own  land, 
or  by  his  own  land  and  the  land  of  another,  grants  the  close,  the 
grantee  and  those  claiming  under  him  have  a  right  of  way  by  neces- 
sity, through  the  lands  of  the  grantor,  as  incident  to  the  grant. 
{The  New  Yorh  Life  Ins.  and  Trust  Co.  v.  Milnor,  1  Barb.  Ch.  353. 
Holmes  v.  Seeley,  19  Wend.  507.)  The  grantor  in  such  a  case  may 
designate  the  way  in  the  first  instance,  and  it  is  then  a  way  by  grant. 
But  if  he  fails  to  do  so,  the  grantee  must  select  for  himself,  and  the 
court  would  no  doubt  extend  a  liberal  indulgence  to  the  exercise  of 
his  discretion.  Nothing  short  of  evident  abuse  ought  to  invalidate 
the  one  thus  designated  and  used,  as  the  grantor  or  those  under  him 


WAY  OF  NECESSITY.  195 

would  be  in  fault  for  not  assigning  a  way  themselves.     {Hohaes  v. 
Seeley,  19  Wend.bK).) 

A  right  of  way  by  prescription  does  not  involve  the  right  to  travel 
at  random  over  another's  land,  nor  is  such  user  for  twenty  years  evi- 
dence of  a  prescriptive  right  of  way  over  any  particular  part  of  it.  (7c?.) 

The  right  of  way  of  necessity  over  the  lands  of  the  grantor,  in  a 
conveyance  in  favor  of  the  grantee  and  those  claiming  under  him,  is 
not  a  perpetual  right  of  way  ;  but  continues  only  so  long  as  the  ne- 
cessity exists.  If  the  grantee  of  the  dominant  tenement,  or  those 
claiming  the  same  under  him,  should  afterwards,  by  purchase  or  oth- 
erwise, acquire  a  convenient  way  over  his  own  lands  to  the  tenement 
in  favor  of  which  the  way  of  necessity  previously  existed,  the  way  of 
necessity  over  the  land  of  the  original  grantor  of  such  tenement  will 
cease.  So  if  a  convenient  way  to  such  tenement  is  subsequently  ob- 
tained by  the  owner  thereof  by  the  opening  of  a  public  highway  to, 
or  through  such  tenement.  The  case  is  otherwise  where  the  owner 
of  land  has  a  right,  of  way  to  the  same  over  the  premises  of  another, 
by  prescription  or  by  express  grant.  A  way  of  necessity  only  arises 
upon  the  implication  of  a  grant,  and  cannot  be  extended  beyond 
what  the  existing  necessity  of  the  case  requires,  {N.  Y.  Life  and 
Trust  Co.  V.  Milnor,  1  Barh.  Ch.  362,  _^er  Walworth,  Ch.) 

A  right  of  way  can  only  be  used  according  to  the  grant,  or  the 
occasion  from  which  it  arises.  If  the  right  be  limited  to  go  to  a 
particular  place,  the  party  having  the  right  cannot  go  beyond  it. 
If  it  be  limited  to  a  particular  mode  of  business  it  cannot  be  con- 
verted into  another  mode,  more  injurious  to  the  soil. 

The  owner  of  the  right  of  way  after  it  has  been  designated  or  se- 
lected, has  a  right  to  build  the  road  so  as  to  make  it  convenient  for 
the  purposes  for  which  it  was  designed ;  and  he  has  a  right  to  make 
all  necessary  repairs. 

But  he  has  no  right,  when  it  becomes  out  of  repair,  from  his  own 
fault,  to  go  out  of  it  upon  the  adjoining  close.  Nor  if  it  becomes 
obstructed  by  the  grantor,  can  he  lawfully  go  out  of  the  way  upon 
the  grantor's  land,  to  avoid  the  obstruction,  though  he  do  no  unne- 
cessary damage.  His  remedy  is  to  remove  the  obstruction,  and  he 
has  a  right  of  action  against  the  grantor  for  placing  them  there. 
(  Williams  v.  Safford,  7  Barh.  309.  Boyce  v.  Brown,  7  id.  80.)  It  is 
otherwise  with  regard  to  a  public  highway.  A  person  traveling  on 
a  public  highway,  and  finding  a  place  foundrious  and  impassable, 


196  RIGHT  OF  WAT,  HOW  EXTINGUISHED. 

has  doubtless  a  right  to  remove  enough  of  the  fences  in  the  adjoin- 
ing close  to  enable  him  to  pass  around  the  obstruction,  doing  no  un- 
necessary injury.  ( Williams  v.  Safford,  supra,  per  Willard,  J. 
Taijlor  V.  Whitehead,  2  Doug.  748,  per  Mansfield,  Ch.  J.) 

When  a  right  of  way  is  granted,  without  any  designation  of  the 
place  in  the  deed,  it  may  become  located  by  usage  for  a  length  of 
time ;  and  being  so  located  it  cannot  be  changed  afterwards  by  the 
grantor,  without  the  consent  of  the  grantee.  But  if  it  be  so  changed, 
and  the  grantee  use  it  in  its  new  form,  for  a  length  of  time,  his  con- 
sent and  acquiescence  to  the  alteration  will  be  presumed.  ( Wyn- 
Tcoop  V.  Burger,  12  John.  222.) 

The  grantee  of  the  right  of  way  and  not  the  grantor  must  keep  it 
in  repair,  (7c?.  Taylor  v.  Whitehead,  supra,)  unless  there  be  cove- 
nants in  the  grant  to  the  contrary.  (Rider  v.  Smith,  3  T.  R.  766. 
Doane  v.  Badger,  12  Mass.  Rep.  Q5.      Wynhoop  v.  Burger,  supra.) 

As  a  right  of  way  is  an  incorporeal  hereditament,  it  is  not  devested 
by  any  conveyance  of  the  estate  out  of  which  it  is  granted.  [Shep. 
Touch.  23.) 

An  easement  acquired  by  deed  cannot  be  lost  by  nonuser.  To  be 
thus  lost  it  must  have  been  acquired  by  user.  The  doctrine  of  ex- 
tinction by  disuse  does  not  apjjly  to  servitudes  or  easements  created 
by  deed.  In  the  one  case  the  mere  disuse  is  sufficient ;  but  in  the 
other  there  must  not  only  be  disuse  by  the  owner  of  the  land 
dominant,  but  there  must  be  an  actual  adverse  user  by  the  owner 
of  the  land  servient.  {Smiles  v.  Eastings,  24  Barb.  49.  White 
V.  Craioford,  10  Mass.  Rep.  182.  Arnold  v.  Stevens,  24  Pick- 
ering, 106.) 

But  when  the  right  of  way  is  acquired  by  user,  the  same  rule  of 
presumption  applies  to  an  unexplained  nonuser  that  confessedly 
results  from  a  long  and  uninterrupted  user  of  such  right.  In  the 
last  case  a  grant  is  presumed,  and  so  in  the  former  a  release  may  be 
inferred.  {Doe  v.  Hilder,  2  Barn.  &  Aid.  791,  by  Abbott,  Ok.  J. 
Moore  v.  Rawson,  3  Barn.  &  Ores.  332.  Hoffman  v.  Savage,  15 
Mass.  Rep.  130.)  A  shorter  period  of  nonuser  should  not  authorize 
the  presumption  of  a  release,  than  is  required  to  afford  evidence  of  a 
grant.  {Emerson  v.  Wiley,  10  Pick.  310.)  Should  a  right  of  way 
be  assigned  to  a  dowager,  over  land  of  her  husband,  with  her  dower, 
the  easement  would  cease  with  the  estate  in  dower.  {Hoffman  v. 
Savage,  supra.) 

A  right  of  way  may  be  extinguished  by  a  unity  of  seisin  and  pos- 


PRIVATE  ROADS.  197 

session,  and  revived  again  by  severance.     {Cruise's  Dig.  title  24, 
Ways.) 

The  constitution  of  1846  provides  that  private  roads  may  be 
opened  in  the  manner  to  be  prescribed  by  law ;  but  in  every  case  the 
necessity  of  the  road,  and  the  amount  of  all  damages  to  be  sustained 
by  the  opening  thereof,  shall  be  first  determined  by  a  jury  of  free- 
holders, and  such  amount,  together  with  the  expenses  of  the  proceed- 
ings, must  be  paid  by  the  person  to  be  benefited  by  the  proceeding. 
{Art  1,  §  7.)  This  constitutional  provision  was  made  in  conse- 
quence of  a  doubt  cast  over  the  power  of  the  legislature  in  this  re- 
spect, by  the  decision  of  a  majority  of  the  supreme  court  in 
1843,'  in  the  case  of  Taylor  v.  Porter,  (4  Hill,  140.)  The  necessity 
of  some  power  in  the  government  to  enable  the  owner  of  land,  who 
cannot  acquire  a  right  of  way  by  grant,  to  connect  his  freehold  to 
a  public  road  by  a  way  over  lands  of  another,  against  the  consent  of 
the  latter,  had  been  felt  at  an  early  day ;  and  provision  was  made 
by  the  colonial  authorities,  before  the  revolution,  for  such  relief. 
The  authority  of  the  legislature  to  authorize  the  laying  out  of  a  pri- 
vate road  through  the  lands  of  another,  without  his  consent,  was 
never  questioned  till  the  case  of  Taylor  v.  Porter,  (supra.)  The  ex- 
istence of  this  power  in  the  government,  whatever  it  was  before,  is 
now  placed  beyond  the  reach  of  opposition,  and  is  a  valuable  attri- 
bute of  legislative  sovereignty. 

The  act  of  1801,  to  regulate  highways,  contained  suitable  provis- 
ions for  laying  out  private  roads,  limiting  their  maximum  width  to 
three  rods,  and  providing  for  an  inquiry  by  a  jury  as  to  the  necessity 
of  the  road,  and  assessing  the  damages  to  be  paid  by  the  applicant. 
(1  K.  &  R.  594.  2  R.  L.  o/1813,  jo.  276,  §§  20-23.)  The  existing 
law  on  the  subject  was  passed  in  1853.  {Ch.  YJ4:,  2  R.  S.  400,  5th 
ed.)  It  contains  minute  directions  with  respect  to  the  application 
for  the  road  to  the  commissioners  of  highways  of  the  town,  the  selec- 
tion and  summoning  of  a  jury  to  inquire  into  the  necessity  of  the 
road,  the  notice  to  the  parties  interested,  the  appraisal  and  payment 
of  the  damages.  It  provides  that  a  record  of  the  proceedings  shall 
be  filed  in  the  office  of  the  town  clerk  of  the  town,  and  grants  an 
appeal  to  the  county  judges  of  the  county,  on  the  application  of  any 
aggrieved  party. 

The  private  road  thus  laid  out  can  be  used  only  by  the  applicant, 
and  be  converted  to  no  other  use  than  a  road ;  and  the  owner  or 


198  EIGHTS  OF  OWNER. 

occupant  of  the  land  through  which  it  is  laid  out  is  not  permitted 
to  use  it  as  a  road,  unless  he  shall  have  signified  his  intention  to 
that  efiect  to  the  jury  or  commissioners  who  ascertained  the  damages 
sustained  hy  the  laying  it  out^  before  the  same  are  ascertained. 
(2  R.  S.  402,  5th  ed.)  The  width  of  the  road  is  not  to  exceed  three 
rods,  and  it  is  to  be  kept  in  repair  by  the  owner  of  it.  It  is,  how- 
ever, made  the  duty  of  the  commissioners  of  highways  of  the  town, 
to  credit  such  persons  as  live  on  private  roads  and  work  the  same, 
so  much  on  their  assessments  as  such  commissioners  may  deem  neces- 
sary to  work  such  private  road ;  or  to  annex  such  private  road  to 
some  of  the  highway  districts.  (2  R.  S.  389,  5th  ed.  §  41.)  This 
provision  was  copied  from  the  former  law.  (2  R.  L.  of  1813,  p.  277, 
§  21.)  It  applies  only  to  cases  where  the  owner  of  the  road  lives  on 
the  same,  and  it  is  therefore  the  means  by  which  he  connects  his  res- 
idence with  the  public  highway.  In  other  cases,  the  road  is  exclu- 
sively his  own  for  travel,  and  must  be  built  and  repaired  by  him  as 
in  the  case  of  private  ways  by  grant,  or  prescription,  or  of  necessity. 

In  Massachusetts,  it  has  been  held,  that  all  the  owner  of  a  right 
of  way  can  claim  is  the  use  of  the  surface,  for  passing  and  repassing, 
with  a  right  to  enter  upon  and  prepare  it  for  that  use,  by  leveling, 
graveling,  plowing  or  paving,  according  to  the  nature  of  the  way 
granted  or  reserved  ;  that  is,  for  a  footway,  or  a  way  for  all  teams 
and  carriages.  {Atkins  v.  Bordman,  2  Met.  467,  j:)er  Shaiv,  Ch.  J.) 
The  case  in  which  the  foregoing  observations  were  made  arose  out 
of  a  reservation  of  a  way  in  urban  property,  and  not  under  a  statute 
like  that  of  New  York. 

But  it  is  believed  that  the  same  principle  is  applicable  to  private 
roads  laid  out  in  pursuance  of  the  New  York  statute.  There  is  no 
provision  for  fencing  such  road ;  and  the  damages  to  be  assessed  are 
such  only  as  are  presumed  to  be  sustained  by  the  owner  or  occupant 
of  the  land  by  reason  of  the  opening  of  the  road.  That  damage  will 
be  the  injury  to  the  soil  by  constructing  the  road,  and  the  inconven- 
ience resulting  to  the  owner  or  occupant  by  reason  of  the  easement 
of  a  way  being  laid  over  the  land.  In  other  respects,  the  rights  of 
the  original  owner  or  occupant  are  undisturbed.  He  can  depasture 
it,  or  cultivate  the  ground  in  any  other  manner  not  inconsistent  with 
the  enjoyment  by  the  other  party  of  the  easement  of  a  way.  The 
prohibition  of  the  owner  or  occupant  of  the  land  to  use  it  as  a  road, 
unless  he  signified  his  intention  so  to  do  at  the  time  of  the  appraisal 


WAT,  HOW  EXTINGUISHED.  199 

of  damages,  contains  an  implication,  that  he  may  use  it  for  all  other 
purposes  not  inconsistent  with  the  use  of  it  as  a  road,  whether  he 
signifies  his  intention  so  to  do  or  not.  (1  R.  S.  517,  §  79.  2  id. 
402,  §  118,  5th  ed.     Adams  v.  Emerson,  6  Fick.  57.) 

The  usage  with  respect  to  fencing  private  roads  laid  out  under 
the  statute,  is  not  uniform.  If  a  fence  he  erected  by  the  owner  of 
the  land  on  the  line  of  the  road,  without  the  consent  of  the  owner 
of  the  way,  it  mpst  give  the  full  width  set  off  by  the  commissioners, 
and  an  action  will  lie  if  it  encroaches  upon  it.  [Herrick  v.  Stover, 
5  Wend.  580.)  But  whether  fenced  or  not,  the  owner  of  the  soil 
through  which  it  passes  has  no  right  to  use  it  as  a  road  with  his 
teams,  if  he  disclaims  all  intention  of  using  it  when  the  damages  were 
assessed.     {Lamhert  v.  Hohe,  14  John.  383.) 

The  supreme  court,  in  Bront  v.  Becker,  (17  Wend.  320,  322,) 
seem  to  think  that  the  statute  with  respect  to  division  fences  is  not 
confined  to  the  owners  of  the  fee  of  adjoining  lands  or  of  any  other 
particular  estate ;  but  from  the  generality  of  the  expression,  may 
properly  include  any  person  having  an  interest  of  any  description  in 
the  adjoining  lot.  (1  R.  8.  353,  §  30.)  In  that  case  one  of  the  own- 
ers was  seised  in  fee,  and  the  other  a  mere  tenant  at  will.  On  that 
principle  it  would  seem  that  when  a  division  fence  has  been  erected 
on  the  line  of  the  way,  any  dispute  concerning  the  same  may  be  set- 
tled by  any  two  of  the  fence  viewers  under  the  statute. 

In  conclusion,  on  this  branch  of  the  subject  it  is  to  be  remarked, 
that  all  the  preceding  observations  relate  to  private  ways  of  the  mo&t 
extensive  character.  The  greater  includes  the  less.  There  are  three 
kinds  of  ways,  viz :  1,  a  foot  way ;  2d,  a  foot  way  and  horse  way. 
The  3d  embraces  the  other  two,  and  is  called  a  cart  way.  This  lat- 
ter is  the  kind  of  way  contemplated  by  the  statute  relative  to  private 
■ways,  and  is  the  most  extensive  that  can  be  granted,  against  the 
consent  of  the  owner  of  the  soil.  It  is  believed  that  a  foot  way,  or 
a  foot  and  horse  way  may  be  granted  under  the  statute.  In  such  a 
case  the  owner  of  the  way  would  be  a  trespasser  if  he  used  it  for 
any  other  purpose. 

A  right  of  way  may  be  extinguished  by  unity,,  when  it  is  a  way 
of  ease  or  pleasure;  but  otherwise  if  it  be  a  way  of  necessity. 
(1  Saunders,  326,  n.  c.     6  Cruise's  Dig.  tit.  24,  §  23  and  note.) 


200  OF  FRANCHISES. 

Section  III. 
.^    Of  Franchises. 

A  franchise  was  defined  by  the  supreme  court,  in  a  leading  case, 
to  be  a  royal  privilege,  or  a  branch  of  the  prerogative,  subsisting  in 
the  hands  of  a  subject,  and  may  arise  from  the  king's  grant,  or,  ia 
some  cases,  may  be  held  by  prescription  which  presupposes  a  grant. 
Immunities  and  privileges  in  which  the  public  have  an  interest,  as 
contradistinguished  from  private  rights,  and  which  cannot  be  exer- 
cised without  authority  derived  from  the  sovereign  power,  are  fran- 
chises. The  right  of  banking,  since  the  restraining  act,  is  a  privi- 
lege or  immunity  subsisting  in  the  hands  of  citizens  by  grant  of  the 
legislature,  and  a  franchise.  (The  People  v.  Utica  Ins.  Co.  15  John. 
358.)  The  same  definition  is  given  by  the  elementary  writers. 
(2  Black.  Com.  37.  Cruise's  Dig.  tit.  27,  §  1.)  Franchises  are, 
even  in  this  country,  extremely  numerous,  and  a  few  only  can  be 
noticed  in  this  treatise. 

The  case  of  banking  institutions,  mentioned  in  the  case  just  cited, 
affords  an  example.  The  banks  formed  under  the  general  law  of 
this  state  have  long  since  been  held  to  be  corporations,  and  of  course 
are  franchises,  ( Warner  v.  Beers,  23  Wend.  103.  Supervisors 
of  Niagara  v.  Tlie  People,  7  Hill,  504,  Gifford  v,  Livingston,  2 
Benio,  380,  Gillet  v.  Moody,  3  Comst.  479,  485,  486,  Talmadge 
V,  Pell,  3  Seld.  328.  Curtis  v.  Leavitt,  15  N.  Y.  Bep.  9,  Leavitt 
V,  Blatclford,  5  Barh.  11.)  They  are  recognized  as  corporations 
by  the  constitution  of  1846,     {Article  8,  §  3.) 

The  franchise  of  a  corporation  consists  in  its  attribute  of  con- 
tinued succession,  derived  from  its  charter  ;  the  right  to  have  a  name 
and  common  seal ;  to  sue  and  be  sued ;  to  make  by-laws ;  to  have 
capacity  to  transact  business.  (1  R.  S.  599,  Dartmouth  College 
V,  Woodioard,  4  Wheat.  518-636,  hy  Marshall,  Ch.  J.  Bank  of 
Augusta  v.  Bank  of  United  States,  13  Pet.  519,  541,  587.)  Hence, 
to  be  a  corporation,  is  a  franchise. 

The  right  to  erect  a  ivharf  on  tide  water,  and  take  toll  for  its  use, 
is  a  franchise,  and  must  flow  from  a  grant  from  the  sovereign  power, 
or  be  upheld  by  prescription.     {Wiswall  v.  Hall,  3  Paige,  313.) 

So  a  right  to  erect  and  maintain  a  dam  in  a  public  river  is  a  fran- 
chise, an  incorporeal  hereditament,  conferred  by  the  legislature ;  but 


GRANTS  CONSTRUED  STRICTLY.  201 

the  dam  is  not.  For  the  invasion  of  the  franchise  the  proper  remedy 
was  case,  under  the  former  practice,  but  only  trespass  for  a  direct 
and  immediate  injury.     (  Wilson  v.  Smith,  14  Wend.  324.) 

On  the  same  principle,  the  right  to  erect  a  bridge  and  take  toll 
from  those  who  pass  over  it,  is  a  franchise  which  the  courts  will 
protect.  {The  Mohaiuk  Bridge  Co.  v.  The  TJtica  and  Sch.  R.  R.  Co. 
6  Paige,  554.  Charles  River  Bridge  v.  Warren  Bridge,  11  P en- 
ters, 420.) 

But  the  grants  of  these  exclusive  privileges  are  to  be  construed 
strictly,  and  are  not  to  be  extended  by  implication.  The  govern- 
ment, by  granting  a  charter  for  a  bridge,  does  not  diminish  its  own 
power  to  grant  a  like  franchise  to  others  which  will  accommodate 
the  same  line  of  travel.  It  does  not  bind  itself  by  implication  to 
withhold  a  similar  grant,  although  it  may  lessen  the  profits  of  the 
franchise  first  granted.  {Charles  River  Bridge  v.  Warren  Bridge, 
su23ra.     Auburn  and  Cato  Plank  Road  Co.  v.  Douglass,  5  Seld.  444.) 

Chancellor  Kent,  in  the  Neivhurgh  Turnpike  Co.  v.  Miller,  (1  John. 
Ch.  101,)  held  that  when  one  has  the  grant  of  a  ferry,  bridge  or 
road,  with  the  exclusive  right  of  taking  toll,  the  erection  of  another 
ferry,  bridge  or  road,  so  near  it  as  to  create  a  competition  injurious 
to  the  franchise,  is,  in  respect  to  such  franchise,  a  nuisance ;  and 
that  the  court  of  chancery  would,  by  perpetual  injunction,  protect 
the  enjoyment  of  the  statute  franchise.  It  has  been  supposed  that 
the  principle  of  this  case  is  subverted  by  the  decision  of  the  United 
States  supreme  court  in  the  Charles  River  Bridge  case,  {supra;) 
but  the  cases  are  not  strictly  in  conflict.  In  the  last  case  the  ques- 
tion arose  whether  the  legislature  was  estopped  by  their  grant  of  a 
toll  bridge  from  granting  another  which  should  be  free ;  but  in  the 
former  the  question  was  whether  an  individual  could  by  his  oivn  act 
prevent  the  operation  of  a  public  grant.  It  must  be  conceded,  how- 
ever, that  though  the  Charles  River  Bridge  case  is  not  in  conflict 
with  the  case  of  the  Neiohurgh  Turnpike  v.  Miller,  {supra,)  the  case 
of  the  A  uburn  and  Cato  Plank  Road  Co.  v.  Douglass,  {sujjra,) 
flatly  contradicts  it.  In  the  latter  case,  the  interference  with  the 
franchise  proceeded  not  from  the  government  which  granted  it,  but 
from  an  individual,  and  if  that  can  be  law,  the  case  of  Neivhurgh 
Turnp)ike  v.  Miller,  {supra,)  was  erroneously  decided. 

The  doctrine  that  the  legislature  is  not  estopped  by  a  prior  grant 
from  making  another  which  will  interfere  with  it,  though  questioned 
by  some,  is  too  firmly  established  to  be  shaken.     {Charles  River 


202  FRANCHISE  MAY  BE  MORTGAGED. 

Bridge  v.  Warren  Bridge,  supra.  Cruise's  Dig.  tit.  27,  §  29,  note. 
Aidjurn  and  Cato  Plank  Road  Co.  v.  Douglass,  supra.  The  Oswego 
Falls  Bridge  Co.  v.  Fish,  8  Barh.  Ch.  547.  TJie  3Iohawk  Bridge 
Co.  V.  TJie  Utica  and  Sch.  Bail  Boad  Co.  6  Paige,  554.  The  En- 
field Toll  Bridge  Co.  v.  The  Hartford  and  New  Haven  B.  B.  Co. 
17  Conn.  Bep.  454.  Thor)ipson  v.  The  Neiv  Haven  and  Harlem 
B.  B.  Co.  3  Sand/.  Ch.  625.)  In  the  case  of  the  Auburn  and  Cato 
Plank  Boad  Co.  v.  Douglass,  {supra,)  Selden,  J.  in  delivering^  the 
opinion  of  the  court  of  appeals,  assumes  that  the  Charles  Biver 
Bridge  case  overrules  the  doctrine  of  Chancellor  Kent  in  the  New- 
hurgh  Turnpike  v.  Miller,  and  the  note  to  3  Kent's  Com.  459,  takes 
the  same  view  of  the  matter.  The  case  of  the  Charles  Biver  Bridge 
V.  Warren  Bridge  does,  indeed,  overthrow  the  doctrine  of  Chancel- 
lor Kent,  that  in  every  grant  of  a  franchise  there  is  an  implied  obli- 
gation in  the  government,  not  to  interfere  with  it,  or  materially  im- 
pair its  value,  by  a  like  grant  to  others.  But  that  is  a  different 
question  from  the  power  of  a  court  of  equity  to  restrain  an  individ- 
ual, who  acts  upon  his  own  authority,  from  injuring  the  franchise. 
It  was  on  this  ground  that  the  court  of  appeals,  in  1853,  on  the  first 
argument  of  the  case  of  the  Auburn  and  Cato  Plank  Boad  Co.  v. 
Douglass,  were  equally  divided ;  four  being  for  sustaining  the  decis- 
ion of  the  court  below,  (12  Barb.  553,)  and  four  for  reversal.  The 
decision  given  on  the  second  argument,  reported  in  5th  Selden,  does 
not  notice  the  point  on  which  the  court  differed  on  the  first  argu- 
ment ;  but  decides  the  case  upon  the  same  principle  as  if  the  legis- 
lature had  granted  to  the  defendant  a  like  franchise  to  construct  a 
road  upon  his  own  land,  and  he  had  constructed  it  under  that  author- 
ity, and  not  of  his  own  authority  as  owner  of  the  land. 

The  grant  of  a  charter  to  a  rail  road  company,  or  to  a  plank  road 
company,  is  also  a  franchise.  Indeed,  there  is  probably  more  money 
invested  in  rail  roads,  on  the  faith  of  these  grants,  than  on  any  other 
franchises  in  this  country.  The  general  rail  road  act,  which  autho- 
rizes the  forming  of  these  associations,  and  makes  them  incorpora- 
tions, confers  upon  them  the  power  of  taking  and  holding  real  estate 
and  other  property  for  the  purposes  of  their  road,  and  among  other 
things  to  borrow  such  sums  of  money  as  may  be  necessary  for  com- 
pleting and  finishing  or  operating  their  rail  road,  and  to  issue  and 
dispose  of  their  bonds  for  any  amount  so  borrowed,  and  to  mortgage 
their  corporate  property  and  franchises,  to  secure  the  payment  of 


AI^NUITIES  AND  RENTS.  203 

any  debt  contracted  by  the  company  for  the  purposes  aforesaid.  {Act 
of  1850,  pp.  224,  225.)  Thus,  the  franchise  of  the  road  is  treated  as 
an  incorporeal  hereditament,  savoring  of  the  realty,  and  the  subject 
of  mortgage  and  sale.  The  bonds  to  secure  which  the  mortgage  is 
authorized  to  be  given,  are  held  by  the  highest  authority  to  be  ne- 
gotiable instruments.  {White  v.  Vermont  and  Mass.  R.  Road  Co. 
21  How.  U.  S.  Rep.  575.)  A  different  rule  prevails  in  England. 
(  White  V.  McMaine,  6  M.  &  Welsh.  200.  Enthoven  v.  Hoyle,  9  L. 
and  Eq.  Rep.  434. 

The  effect  of  such  mortgage  and  of  a  foreclosure  under  it,  belongs 
to  a  different  part  of  this  treatise.     [See  Mortgages.] 

The  special  privileges  granted  to  towns,  counties  or  cities,  are 
franchises.  Thus,  the  ferries  belonging  to  the  city  of  New  York,  the 
right  to  wharfage,  to  keep  markets,  and  various  other  incidents  in 
their  charter,  belong  to  the  same  class. 

Section  IY. 

Of  Annuities  and  Rents. 

The  principal  difference  between  an  annuity  and  a  rent  charge,  is 
that  the  remedy  for  the  first  is  against  the  person  alone,  and  the 
other  is  a  charge  upon  the  land.  An  annuity  is  a  yearly  sum  of 
money  chargeable  only  on  the  person  of  the  grantor.  If  it  be  grant- 
ed to  a  man  and  his  heirs,  it  is  a  fee  simple  personal.  {Co.  Lift.  2  a, 
144  b.)  If  the  grant  be  to  a  man  and  his  heirs,  the  heir  of  the 
grantor  is  not  bound,  unless  the  grant  be  for  him  and  his  heirs.  {Id.) 
An  annuity  may  be  charged  on  land,  and  the  remedy  of  the  grantee 
may,  at  his  election,  be  real  or  personal.  (2  Bl.  Com.  40,  n.)  An 
annuity  is  said  to  be  real  estate,  and  descendible  to  the  heirs. 

Rent  is  defined  to  be  a  certain  profit  issuing  yearly  out  of  lands 
and  tenements  corporeal.  (2  Bl.  Com.  41.  Co.  Lilt.  144.)  It  is 
not  necessary  that  it  should  be  in  money  ;  for  it  may  consist  of  hor- 
ses, corn  or  manual  services ;  as  to  plough  so  many  acres,  or  to  labor 
so  many  days,  and  the  like.  The  profit  thus  reserved  must  be  cer- 
tain, or  capable  of  being  reduced  to  a  certainty.  ( Van  Rensselaer 
V.  Jones,  5  Ben.  449.)  It  must  issue  out  of  the  thing  granted,  and 
not  be  part  of  the  thing  itself.  It  must  issue  out  of  lands  and  ten- 
ements corporeal.  It  cannot  be  granted  of  a  franchise  or  a  com- 
mon for  then  there  is  nothing  into  which  the  landlord  can  enter  to 


204  RENT  CHARaE. 

distrain.  The  agreement  to  pay  for  the  use  of  an  incorporeal  here- 
ditament, as  a  common  or  a  way,  is  a  mere  personal  agreement.  It 
must  issue  yearly;  though  it  may  be  payable  monthly,  or  every 
third  year,  and  the  like.  But  as  it  issues  out  of  lands,  the  profits  of 
which  arise  annually,  and  as  there  must  be  some  criterion  by  which 
the  amount  can  be  ascertained,  the  year  is  the  proper  standard  of 
duration  by  which  it  is  to  be  measured. 

At  common  law  there  were  three  kinds  of  rent,  namely,  rent  ser- 
vice, rent  charge,  and  rent  seek, 

Eent  service  is  when  the  tenant  holds  his  lands  by  fealty  and  cer- 
tain rent.  It  was  formerly  so  called  because  rent  consisted  of  some 
corporeal  service,  as  ploughing  the  lord's  land.  To  this  kind  of  rent 
distress  was  inseparably  incident,  whether  the  lease  contained  any 
clause  of  distress  or  not.  It  was  required  that  the  landlord  should 
retain  the  reversion,  and  that  the  rent  should  be  certain,  otherwise 
the  lessor  could  not  distrain,  unless  there  was  a  clause  in  the  lease 
authorizing  it,  in  which  case  it  would  be  a  rent  charge.  {Littleton, 
§  217.  Van  Rensselaer  v.  Hays,  5  Smith,  68.  Same  v.  Ball,  Id. 
100 ;  S.  C.  27  Barh.  104.  Same  v.  Chadioick,  24  id.  333.  Crahbe's 
Laiv  of  Meal  Property,  vol.  1,  169,  §  151.  Cruise's  Dig.  cli.  28. 
Cornell  v.  Lamb,  2  Cowen,  652.) 

A  rent  charge  is  any  rent  granted  out  of  lands  by  deed  with  a 
clause  of  distress,  whence  it  derives  its  name,  because  the  land  is 
charged  with  distress  by  the  express  provision  of  the  parties,  which 
it  would  not  otherwise  be.  This  may  arise  as  well  in  a  reservation 
in  a  grant  in  fee,  as  by  a  direct  grant  of  a  rent  charge  by  the  owner 
of  thfe  estate.  It  is  thus  expressed  by  Littleton,  §  217  :  if  a  man, 
by  deed  indented  at  this  day,  makes  a  lease  for  life,  the  remainder 
over  in  fee,  or  a  feofi'ment  in  fee,  and  by  the  same  indenture  he  re- 
serves to  him  and  his  heirs  a  certain  rent,  and  that  if  the  rent  bo 
behind  it  shall  be  lawful  for  him  and  his  heirs  to  distrain,  &c.,  such 
rent  is  a  rent  charge.     {See  same  cases.) 

A  rent  seek  was  properly  a  rent  reserved  by  deed  without  clause 
of  distress.  {Litt.  §  217.)  It  might  be  reserved  in  a  grant  in 
fee.     {Id.) 

But  the  distinction  between  them  has  been  done  away  in  England, 
by  the  4  Geo.  2,  ch.  238,  which  gives  the  same  remedy  for  a  rent  seek 
as  for  a  rent  service,  or  a  rent  charge.  The  revised  statutes  of  New 
York  give  the  grantees  of  any  demised  lands,  tenements,  rents,  or 
other  hereditaments,  or  of  the  reversion  thereof,  the  assignee  of  the 


COVENANT  RUNS  WITH  THE  LAND.  205 

lessor  of  any  demise,  and  the  heirs  and  personal  representatives  of 
the  lessor,  grantee  or  assignee,  the  same  remedies  by  entry,  action  or 
otherwise,  for  the  non-performance  of  any  agreement  contained  in 
the  lease  so  assigned,  or  for  the  recovery  of  any  rent,  as  their  grantor 
or  lessor  had  or  might  have  had  if  such  reversion  had  remained  in 
such  lessor  or  grantor.  (3  R.  8.  37,  §  17,  5th  ed.)  They  also  give 
the  lessees  of  any  lands,  their  assigns  or  personal  representatives,  the 
same  remedy  by  action  or  otherwise  against  the  lessor,  his  grantees, 
assignees,  or  his  or  their  representatives,  for  the  breach  of  any  cove- 
nant or  agreement  in  such  lease  contained,  as  such  lessee  might  have 
had  against  his  immediate  lessor,  except  covenants  against  incum- 
brances, or  relating  to  the  title  or  possession  of  the  premises  demised. 
(Id.  §  18.)  And  the  provisions  of  the  last  two  sections  are  extended 
as  well  to  grants  or  leases  in  fee  reserving  rents,  as  to  leases  for  life 
or  years.  {Id.  §  19.  Nicoll  v.  The  Neiu  York  and  Erie  Rail  Road, 
12  Barh.  460,  affirmed  by  court  of  a2jpeals,  2  Kernan,  121.) 

It  was  held  in  England,  at  an  early  day,  that  an  asssignee  of  a 
rent  charge  in  fee  could  have  covenants  against  the  grantor,  because 
it  is  a  covenant  annexed  to  the  thing  granted.  Sir  Edward  Sugden, 
afterwards  Lord  St.  Leonards,  lord  chancellor  of  England,  in  his  ex- 
cellent treatise  on  Vendors,  after  reviewing  the  British  authorities, 
says,  that  the  rent  charge  is  an  incorporeal  hereditament,  and  issues 
out  of  the  land,  and  the  land  is  bound  by  it ;  the  covenant  may 
therefore  well  run  with  the  rent  in  the  hands  of  the  assignee  ;  the 
nature  of  the  subject,  which  savors  of  the  realty,  altogether  distin- 
guishes the  case  from  a  matter  of  a  personal  nature.  (2  Sug.  Vend. 
177,  Perkins'  ed.  Brewster  v.  Kidgell,  12  3Iod.  166.  Van  Rens- 
selaer V.  Hays,  5  Smith,  80,  j9e?'  Denio,  J.  approving  the  above.) 
The  learned  author  does  not  put  it  upon  the  construction  of  the  32 
Henry  8,  ch.  34,  which  gave  the  action  by  and  against  the  assignees 
of  estates  for  life  and  years,  and  which  was  adopted  in  this  state  in 
1788,  but  on  the  theory  and  legal  effect  of  such  covenants. 

A  different  view  of  the  subject  was  taken  in  the  supreme  court  of 
this  state  as  early  as  1800,  in  Devisees  of  Van  Rensselaer  v.  Exec- 
utors of  Plainer,  2  John.  Cas.  24,)  when  it  was  held  that  the  devisee 
of  the  grantor  in  whose  favor  a  rent  charge  had  been  reserved  in  a 
lease  in  fee,  could  not  maintain  an  action  in  his  own  name  for  rent 
in  arrear ;  in  other  words,  the  covenant  did  not  run  with  the  land, 
and  the  case  was  not  aided  by  the  re-enactment,  in  1788,  of  the 
statute  of  Henry  8.     It  is  evident  that  if  Sugden  be  correct,  as  it  is 


206  QUI^  EMPTORES. 

"believed  he  was,  the  case  was  erroneously  decided ;  but  it  was  not 
taken  to  the  court  of  errors,  but  acquiesced  in  for  the  time  being. 
This  decision,  it  is  supposed,  led  to  the  act  of  1805,  {Laws  of  1805, 
ch.  98,  p.  254,)  entitled  an  act  to  enable  grantees  of  reversions  to 
take  advantage  of  the  conditions  to  be  performed  by  lessees,  which, 
after  reciting  that  it  had  been  doubted  whether  the  provisions  con- 
tained in  the  act  entitled  "  An  act  to  enable  grantees  of  reversions 
to  take  advantage  of  the  condition  to  be  performed  by  lessees, 
thereby  intended  to  be  amended,  extended  to  any  but  assignees  of 
reversions  dependent  on  estates  for  life  or  years ;"  and  further  recit- 
ing that  leases  or  grants  in  fee,  reserving  rents,  had  long  since  been 
in  use  in  this  state,  and  to  remove  all  doubts  respecting  the  true 
construction  of  the  aforesaid  act,  it  was  enacted  that  all  the  provis- 
ions of  said  act  and  the  remedies  thereby  given,  should  be  construed 
to  extend  as  well  to  grants  or  leases  in  fee  reserving  rents,  as  to  leases 
for  life  or  years,  any  law,  usage  or  custom  to  the  contrary  notwith- 
standing. This  act  was  re-enacted  in  the  revised  laws  of  1813,  {vol. 
1,  j9.  364,  §  3,)  and  in  the  revised  statutes  of  1830,  before  cited. 
The  recital  is  evidence  of  the  prior  usage  with  respect  to  rents  re- 
served in  leases  or  grants  in  fee,  and  affords  some  evidence  that  such 
leases  were  common,  and  that  the  covenant  for  the  payment  of  the 
rent  was  supposed  to  run  with  the  land. 

The  act  of  1805  was  evidently  a  declaratory  act.  Its  repeal  in 
1860  {L.  of  1860,  p.  675)  does  not  controvert  the  prior  usage,  nor 
take  away  rights  which  existed  before. 

The  statute  quia  emptores,  (18  Ud.  1,)  provided  that  if  a  person 
made  a  feoffment  in  fee,  or  gift  in  tail,  with  a  limitation  over  in  fee, 
the  feoffee  or  donee  will  hold  of  the  superior  lord  by  the  same  ser- 
vices which  the  feoffee  was  bound  to  perform  to  him ;  from  which 
it  followed,  that  upon  a  conveyance  of  this  kind,  no  rent  service 
could  be  reserved  to  the  feoffer  or  donor,  because  he  had  no  rever- 
sion left  in  him  ;  and  as  the  feoffee  or  donee  did  not  hold  of  him,  he 
was  bound  to  do  him  service.  But  if,  upon  a  conveyance  in  tail  or 
fee  or  for  life,  the  donor  keeps  the  reversion  and  reserves  to  himself  a 
rent,  it  will  be  a  rent  service,  because  fealty  and  a  power  of  distress 
are  incident  to  such  reversion,  {Cruise's  Dig.  tit.  28,  ch.  1,  §  5.) 
Before  the  statute,  according  to  Littleton,  (§  216,)  if  a  man  made 
a  feoffment  in  fee  simple,  yielding  to  him  and  to  his  heirs  a  cer- 
tain rent,  this  was  a  rent  service,  and  for  this  he  might  distrain  of 
common  right,  and  if  there  was  no  reservation  of  any  rent,  nor  of 


DURABLE  LEASE.  207 

any  seisin,  yet  the  feoffee  held  of  the  feoffor  by  the  same  service  as  the 
feoffor  held  of  his  lord  next  paramount.  But  since  the  statute,  as 
appears  by  Littleton,  §  217,  cited  on  a  preceding  page,  (p.  204,)  if  a 
rent  be  reserved  in  a  deed  in  fee,  it  is  no  longer  a  rent  service;  but 
if  there  be  a  clause  in  the  deed  reserving  to  the  grantor  and  his 
heirs  a  certain  rent,  with  authority  to  him  or  his  heirs,  if  the  rent 
be  behind,  to  enter  and  distrain,  it  is  a  rent  charge.  Hence  it  is 
quite  clear  that  in  England,  after  the  statute  quia  emptores,  rents 
charge  were  reserved  or  granted  in  estates  in  fee  simple,  with  a  power 
of  distress.  That  class  of  conveyances  was  frequent  in  the  colony, 
and  was  usually  denominated  a  durable  lease,  or  a  lease  in  fee ;  thus 
adopting  a  term  which  in  England  was  applicable  only  to  an  instru- 
ment creating  a  less  estate  than  the  lessor  had  in  the  premises,  which 
is  the  true  notion  of  a  lease,  in  the  English  books  of  conveyancing. 

It  has  been  doubted  whether  the  statute  quia  em^otores  was  ever 
in  force  in  the  colony  of  New  York.  {Jackson  v.  Schutz,  18  John. 
179.  Be  Peyster  v.  Michael,  2  Seld.  502.)  If  by  this  is  meant  that 
the  statute  was  not  re-enacted  by  the  colonial  legislature,  the  asser- 
tion is  probably  true  ;  for  it  was  never  enacted  here  till  the  substance 
of  it  was  incorporated  into  our  statute  of  tenures  after  the  revolu- 
tion. {Act  of  Feb.  20, 1787,  IK.&R.  64.  1  R.  8.  718.)  But  it  is 
believed  that  our  ancestors  brought  with  them,  in  emigrating  to  this 
country,  such  parts  of  the  common  law,  and  such  of  the  English 
statutes  altering  or  amending  the  same,  as  were  of  a  general  nature 
and  applicable  to  their  situation,  {Van  Rensselaer  v.  Hays, 
5  Smith,  73.  Bogardus  v.  Trinity  Church,  4  Paige,  178,  affirmed, 
15  Wend.  111.  Canal  Commissioners  v.  The  People,  5  id.  445. 
Commomuealth  v.  Leaeli,  1  Mass.  Rep.  60.  Same  v.  Knowlton, 
2  id.  535.) 

The  durable  lease  or  grant  in  fee  reserving  rent,  with  a  power  to 
distrain,  was  a  common  conveyance  in  this  state  both  before  and 
since  the  revolution.  Such  lease  creates  a  valid  rent  charge,  which 
descends  to  the  heirs,  and  the  covenant  runs  with  the  land  into 
whosesoever  hands  it  lawfully  passes.  ( Van  Rensselaer  v.  Hays, 
19  N.  Y.  Rep.  76.  Notes  235  to  Co.  Litt.  143  h,  by  Mr.  Har- 
grave,  and  the  cases  be/ore  cited.  Van  Rensselaer  v.  Ball,  5  Smith, 
100 ;  S.  C.  27  Barb.  104.  Bradbury  v.  Wright,  Botiglass,  624, 
note  to  do.  627.) 

It  has  not  been  unusual,  in  adopting  the  law  of  the  parent  state, 
to  introduce  changes  to  make  it  conform  to  the  circumstances,  wants 


208  RENT  RESERVED  GENERALLY. 

and  conveniences  of  the  country.  These  changes  have  sometimes 
been  the  result  of  usage  alone,  and  sometimes  of  statutory  regula- 
tions and  judicial  construction.  It  is  upon  this  principle  that  the 
term  lease,  which,  in  England,  denotes  a  contract  for  the  possession 
and  profits  of  land  for  a  determinate  period,  with  a  recompense  of 
rent,  payable  in  money  or  other  things ;  leaving  a  reversion  in  the 
grantor,  with  us,  is  indiscriminately  used,  whether  the  estate  granted 
be  for  life  or  years,  or  in  fee.  {Bac.  Ahr.  tit.  Leases.)  Grants  in 
fee,  reserving  rent,  with  a  clause  of  distress  and  re-entry,  have  long 
been  called  leases  in  fee,  or  durable  leases,  in  this  state,  both  in 
statutes  and  judicial  decisions.  {Laws  of  1805,  ch.  98.  1  R.  S. 
748,  §  25.  3  id.  37,  5th  ed.  De  Peyster  v.  Michael,  2  Seld.  467. 
JacJcson  v.  Collins,  11  John.  1.  Van  Rensselaer  v.  Jeioett,  5  De- 
nio,  121.  Same  v.  Jones,  2  Barh.  S.  C.  R.  643.  Same  v.  HayeSj 
5  Denio,  477.  Same  v.  Snyder,  3  Kern.  299.  Van  Rensselaer  v. 
Smith,  27  Barh.  104.) 

In  the  foregoing  cases  an  estate  in  fee  reserving  rent  with  a  clause 
of  distress  and  re-entry,  is  called  a  lease,  and  the  relation  of  landlord 
and  tenant  is  spoken  of  as  subsisting  between  the  parties.  The 
party  entitled  to  the  rent  is  called  the  landlord,  and  the  party  liable 
to  pay  it,  the  tenant.  And  the  cases  were  held  to  be  within  the 
statute  giving  a  right  of  re-entry  to  the  landlord  for  the  non-pay- 
ment of  the  rent. 

There  are  numerous  other  cases  in  the  books  in  which  we  have 
used  common  law  terms  in  a  different  sense  from  that  which  they  bore 
in  the  mother  country,  or  in  the  same  sense,  with  some  essential  modi- 
cations.  Our  courts,  for  example,  have  held  that  rail  road  bonds 
are  negotiable  securities,  contrary  to  the  notions  of  British  lawyers. 
{White  V.  Vermont  and  3Iass.  R.  R.  21  Hoio.  U.  S.  Reji.  575.) 

Though  rents  are  usually  reserved  on  leases,  they  may  be  reserved 
on  a  release,  a  bargain  and  sale,  and  lease  and  release.  {Cruise's 
Dig.  tit.  28,  ch.  1,  §  25.) 

With  regard  to  the  person  to  whom  rent  may  be  reserved  upon  a 
grant  or  lease,  it  is  said  by  Littleton  that  it  can  only  be  to  the 
grantor  or  lessor,  or  to  his  or  their  heirs,  and  in  no  manner  can  it 
be  reserved  to  a  stranger.     {Litt.  §  346.) 

A  rent  reserved  generally,  without  specifying  to  whom  payable, 
will  go  to  the  lessor,  and  after  his  death  to  his  heirs.  If  the  reserva- 
tion be  to  the  lessor  and  his  heirs,  the  effect  will  be  the  same,  if  the 
lessor  was  seised  in  fee.     (1  Co.  Litt.  47  a.) 


EVICTION.  209 

With  respect  to  the  estate  which  may  be  had  in  a  rent,  it  depends 
on  the  nature  and  duration  of  the  estate  out  of  which  it  issues.  A 
rent  charge  may  be  limited  to  a  man  and  his  heirs,  which  of  course 
gives  him  an  estate  in  fee  simple  in  the  rent.  Leases  for  years,  lands 
held  for  a  term  of  years,  and  estates  held  per  outer  vie,  are  treated 
by  the  revised  statutes  as  personal  assets,  and  required  to  be  inserted 
in  the  inventory  of  deceased  persons.  Rent  reserved  to  the  deceased, 
and  which  had  accrued  at  the  time  of  his  death,  is  also  a  part  of  the 
personalty,  whether  it  arose  out  of  a  rent  seisin  or  a  rent  charge. 
(2  R.  S.  82,  83.) 

A  rent  charge  is  subject  to  dower  and  curtesy.  (Co.  Litt.  32  a.) 
So  also  is  a  rent  service,  if  the  party  entitled  to  the  rent  is  entitled 
also  to  the  reversion.     {Id.  29  a.) 

The  tenant  will  be  discharged  from  the  payment  of  rent  if  ho  be 
evicted  from  the  demised  premises. 

Such  eviction  to  constitute  a  bar,  must  have  taken  place  before 
the  rent  claimed  fell  due.  {McCarty  v.  Hudson,  24  Wend.  291. 
Watts  V.  Coffin,  11  John.  495.) 

When  the  lessor  enters  wrongfully  into  part  of  the  demised  prem- 
ises, the  tenant  is  discharged  from  the  payment  of  the  ivhole  rent  till 
he  is  restored  to  the  whole  possession. 

When  a  party,  after  executing  leases  of  portions  of  his  farm  to 
several  tenants,  granted  the  whole  farm,  with  the  reversion  of  the 
demised  premises,  to  a  tenant  in  fee,  reserving  an  annual  rent,  and 
after  such  grant,  entered  upon  the  demised  premises  and  distrained 
the  goods  of  the  original  tenants  for  rent  accrued  subsequent  to  the 
grant  of  the  whole  estate,  it  was  held  that  such  entry  and  distress 
amounted  to  an  eviction  of  the  principal  tenant,  and  worked  a  sus- 
pension of  the  rent.     {Lewis  v.  Payn^  5  Wend.  423.) 

A  physical  eviction  by  the  landlord  is  not  indispensable  to  relieve 
the  tenant  from  liability  for  rent.  It  is  sufficient  if  the  landlord  in- 
tentionally and  injuriously  disturbs  and  interferes  with  the  benefi- 
cial enjoyment  of  the  premises,  {Cohen  v.  Dupont,  1  Sandf.  260.) 
Where  the  demised  premises  were  part  of  a  house,  and  the  landlord 
made  the  residue  a  resort  of  lewd  and  disorderly  men-  and  women, 
and  a  place  of  prostitution,  the  court  of  errors  of  New  York  held  it 
to  amount  to  an  eviction,  and  properly  proof  under  the  usual  plea. 
{Dyett  V,  Pendleton,  8  Coiven,  727,  reversing  the  "previoiis  case,  4 
id.  581.) 

But  to  make  out  a  constructive  eviction,  there  must  be  an  inter- 

WlLL.— 14 


210  RENT  APPORTIONED. 

ference  with  the  actual  use  or  occupation  of  the  premises,  a  deliber- 
ate disturbance  of  the  possession,  depriving  the  tenant  of  a  benefi- 
cial enjoyment  of  the  premises.  And,  therefore,  when  the  landlord, 
a  year  and  more  before  the  expiration  of  the  lease,  willfully  under- 
took to  let  the  premises,  and  posted  a  bill  on  the  building,  but  de- 
sisted before  the  commencement  of  the  last  year,  it  was  held  not  to 
be  a  constructive  eviction.     {Ocjllvie  v.  Hull,  5  Hill,  52.) 

The  destruction  of  the  building  by  fire  hefore  the  time  fixed  for 
the  commencement  of  the  term,  absolves  the  lessee,  and  entitles  him 
to  have  the  lease  canceled.  (  Wood  v,  Huhhell,  5  Barb.  601.)  But 
a  destruction  of  them  by  fire  after  the  term  has  commenced,  affords 
no  relief,  either  at  law  or  in  equity,  against  an  express  covenant  to 
pay  rent,  unless  the  tenant  has  protected  himself  by  a  stipulation  in 
the  lease,  or  the  landlord  has  covenanted  to  rebuild,  {Gates  v. 
Green,  4  Paige,  355.) 

But  if  the  tenant  merely  hires  rooms  in  a  building,  which  is  sub- 
sequently destroyed  by  fire,  his  interest  ceases  with  the  destruction 
of  the  building,  and  he  is  not  liable  for  rent,  though  there  be  an  ex- 
press covenant  to  pay.  (Kerr  v.  The  Merchants'  Exchange,  3  Edio. 
Ch.  R.  315.  Graves  v.  Berden,  29  Barb.  100.)  In  Izon  v.  Gorton, 
(5  Bi7ig.  N.  C.  501,)  the  premises  were  not  destroyed,  though  ren- 
dered untenantable,  until  repaired  by  the  landlord ;  which  repairs 
were  made  by  him,  and  notice  thereof  given  to  the  defendant  when 
they  were  completed.     The  tenant  was  held  to  be  liable. 

The  usual  and  safe  course  is,  to  have  suitable  stipulations  in  the 
lease  itself,  excusing  the  tenant  from  the  payment  of  rent,  in  case 
the  premises  are  casually  destroyed  by  fire,  without  his  fault.  And 
the  covenant  should  be  so  framed  as  to  excuse  from  rent  in  case  th«j 
premises  were  destroyed  by  lightning,  or  other  cause,  without  being 
burned,  if  the  destruction  were  without  the  fault  of  the  tenant. 
(Babcoch  v.  The  Montgomery  Co.  Mut.  Ins.  Co.  4  Comst.  326.)  [Set- 
several  forms  of  leases  with  the  fire  clause,  in  the  Appendix.] 

Rent,  whether  it  be  a  rent  service  or  a  rent  charge,  may  be  appor- 
tioned. This  may  arise  either  by  a  grant  of  a  part  of  the  reversion 
of  the  land  out  of  which  it  issues,  or  by  granting  a  part  of  the  rent 
to  one  person  and  a  part  to  another.  (Per  Abbott,  Ch.  J.  in  Bliss 
V.  Collins,  5  Barn.  &  Aid.  876.) 

Littleton  (§  222)  lays  it  down  that  if  a  man  has  rent  charge  to 
him  and  his  heirs,  issuing  out  of  certain  land,  if  he  purchase  a  par- 
cel of  the  land,  all  the  rent  charge  is  extinct  and  the  annuity  alsOj 


APPORTIONMENT.  211 

because  the  rent  charge  cannot  be  so  apportioned.  But  if  a  man  have 
a  rent  service,  and  purchase  parcel  of  the  land  out  of  which  the 
rent  issued,  it  shall  not  extinguish  all,  but  for  the  parcel.  He  thus 
makes  a  distinction  with  regard  to  apportionment,  between  a  rent 
charge  and  a  rent  service ;  and  Coke  adopts  the  same  distinction. 
(Co.  Liu.  148  a.)  And  it  is  laid  down  the  same  way  in  Bacon's  Abridg- 
ment, title  Rent,  M.  If  a  person  has  a  rent  charge  issuing  out  of 
three  acres  of  land,  and  releases  all  his  right  in  one  acre,  the  rent  is 
said  to  be  extinct ;  because  all  issues  out  of  every  part,  and  it  cannot 
be  apportioned.  The  owner  of  a  rent  charge  may  however  release 
to  the  tenant  a  part  of  the  rent  and  reserve  the  residue.  {Cruise's 
Dig.  tit.  28,  ck  111,  §  19.) 

The  mode  adopted  by  English  conveyances,  according  to  Mr. 
Cruise,  to.  obviate  the  effect  of  the  above  doctrine,  is  for  the  grantee 
of  the  rent  charge  to  join  in  the  conveyance  of  the  land,  which  ope- 
rates as  a  release  of  the  lands  conveyed,  from  the  payment  of  the  rent 
charge ;  and  to  insert  a  proviso  in  the  deed,  that  the  other  lands 
shall  continue  subject  to  the  rent  charge.  This  proviso  operates,  it 
is  said,  as  a  new  grant  of  the  rent  charge.     (Id.  §  20.) 

There  are,  however,  many  cases  in  which  a  rent  charge  or  a  o^ent 
service  may  be  apportioned,  as  well  by  the  act  of  the  party  as  by  the 
act  of  the  law.  Thus,  when  the  grantee  of  a  rent  charge  releases 
part  of  the  rent  to  the  tenant,  such  release  will  not  extinguish  the 
whole  rent,  but  the  part  not  released  will  still  continue.  (Id.  §  22.) 
In  Bives  v.  Watson,  (5  3Iees.  &  Wels.  255,)  it  was  held  that  a  rent 
charge  may  be  divided  by  will,  or  by  a  deed  operating  under  the 
statute  of  uses,  so  as  to  make  the  tenant  liable,  without  attornment 
to  several  distresses  by  the  devisees ;  and  indeed  by  a  conveyance  of 
any  kind. 

In  this  country  the  distinction  between  a  rent  charge  and  a  rent 
service,  with  regard  to  apportionment,  does  not  seem  to  exist,  as  it 
did  in  the  time  of  Littleton  and  Coke.  Such  rent  is  held  to  be  ap- 
portionable  by  the  act  of  the  party,  as  well  as  by  the  act  of  the  law. 
(IngersoU  v.  Sergeant,  1  Whart.  337.  Farley  v.  Craig,  6  Halstead, 
263,  273,  279.  Cole  v.  Patterson,  25  Wend.  456.  Van  Rensselaer 
T.  Chadwick,  24  Barh.  333.  The  People  v.  Haskins,  7  Wend.  463. 
Payn  v.  Beal,  4  Denio,  407.  Van  Bensselaer  v.  Jones,  2  Bat'b. 
S.  C^B.  643.     Same  v.  Jetvett,  2  Comst.  135,  141.     3  Kent,  470.) 

Though  in  some  of  these  cases  other  questions  arose,  yet  they  were 
all  leases  in  fee  reserving  rent,  with  a  clause  of  distress  and  re-entry, 


212  REMEDIES. 

and  in  some  of  them  the  direct  question  of  apportionment  of  rent  in 
such  leases  was  considered.  No  distinction  was  made  between  the 
apportionment  of  a  rent  charge  and  a  rent  service.  Both  were  placed 
on  the  same  ground,  • 

An  apportionment  according  to  the  quantity  of  land  \^  prima  facie 
risht,  when  there  is  no  evidence  as  to  its  value.  It  will  be  assumed 
all  to  be  of  the  same  value.  (  Van  Rensselaer  v.  Jones,  supra.)  An 
apportionment  according  to  the  value  of  the  land  is  undoubtedly 
the  most  equitable,     {Same  v.  Chadioick,  supra.) 

The  common  law  was  defective  in  not  allowing  an  apportionment 
of  rent  as  to  time.  If  the  tenant  for  life,  after  demising  lands,  should 
die  on  or  after  the  day  when  the  rent  became  due  and  payable,  his 
executors  or  administrators  might  recover  from  the  under  tenant 
the  whole  rent  due ;  but  if  he  died  before  the  rent  became  due,  they 
had  no  remedy  against  the  tenant  for  that  part  of  the  year.  But 
the  statute  has  obviated  this,  and  given  to  the  executors  or  admin- 
istrators the  right  to  recover  the  proportion  of  rent  which  had  accrued 
before  the  death.     (1  R.  S.  747,  §  22.) 

The  rule  with  respect  to  apportionment  applies  only  to  such  ser- 
vices as  are  in  their  nature  divisible.  If,  therefore,  the  rent  be  of  a 
horse,  a  hawk,  or  the  like,  the  landlord,  by  purchasing  part  of  the 
tenancy,  cannot  throw  the  whole  burden  on  the  remainder ;  and 
therefore,  as  there  can  be  no  apportionment  of  such  a  rent,  it  shall 
be  excited  by  such  purchase.  {Litt.  222.  Cruise's  Digest,  tit.  28, 
ch.  Ill,  §  28.) 

The  remedy  in  case  of  the  non-payment  of  rent,  underwent  a 
great  change  in  this  state  in  1846.  By  an  act  passed  in  that  year, 
distresses  for  rent  were  abolished.  {Laius  of  1846,  cli.  271,  §  1.  3 
B.  S.  829,  5th  ed.)  A  subsequent  section  enacts  that  wherever  the 
right  of  re-entry  is  reserved  and  given  to  a  grantor  or  lessor  in  any 
grant  or  lease,  in  default  of  a  sufficiency  of  goods  and  chattels  where- 
on to  distrain  for  the  satisfaction  of  any  rent  due,  such  re-entry  may 
be  made  at  any  time  after  default  in  the  payment  of  such  rent,  pro- 
vided fifteen  days'  previous  notice  of  such  intention  to  re-enter,  in 
writing,  be  given  by  such  grantor  or  lessor,  or  his  heirs  or  assigns,  to 
the  grantee  or  lessee,  his  heirs,  executors,  administrators  or  assigns, 
notwithstanding  there  may  be  a  sufficiency  of  goods  and  chattels  on 
the  lands  granted  or  demised,  for  the  satisfaction  thereof.     The  no- 


EEMEDIES.  213 

tice  may  be  served  personally  on  such  grantee  or  lessee,  or  by  leaving 
it  at  his  dwelling  house  or  place  of  abode. 

The  principal  questions  arising  under  this  act  have  been  as  to  its 
constitutionality,  with  reference  to  past  transactions,  and  with  re- 
spect to  its  application  to  grants  or  leases  in  fee,  reserving  a  rent 
with  a  clause  of  re-entry.     Both  these  questions  have  been  decisively 
settled  by  the  highest  court  of  the  state,  and  they  are  no  longer  open 
for  discussion.     As  the  statute  only  affects  the  remedy,  and  does  not 
impair  the  obligation,  of  the  contract,  it  has  been  adjudged  that  the 
enactment  is  within  the  undoubted  power  of  the  legislature.     Tho 
right  of  re-entry,  for  the  non-payment  of  rent,  it  was  also  held,  may 
be  reserved  upon  a  conveyance  in  fee.     (  Van  Rensselaer  v.  Ball,  1 
9  N.  Y.  Bep.  100.)     And  where  there  is  this  right  of  re-entry  in 
the  lease  or  conveyance  creating  the  rent,  ejectment  is  the  appropri- 
ate remedy,  whether  the  lease  be  for  life  or  years,  or  in  fee  simple. 
[Id.     Jackson  v.  Collins,  11  John.  1.      Van  Rensselaer  v.  Jewett,  5 
Deni'o,  121.     Same  v.  Hays,  5  id.  477.     Same  v.  Jeioett,  2  Comst 
141.    'Same  v.  Snyder,  3  Kernan,  299.     The  3fayor  &c.  v.  Camp-' 
hell,  18  Barb.  156.)     These  cases  show  that  no  demand  of  the  rent, 
at  the  day,  is  necessary,  as  at  common  law,  but  that  the  notice  pro- 
vided for  in  the  3d  section  of  the  act  of  1846,  {supra,)  stands  in  the 
place  of  the  evidence  of  a  want  of  goods  upon  which  to  distrain. 
The  language  as  well  as  the  evident  intent  of  the  act  applies  as  well 
to  leases  in  fee,  as  to  leases  for  life  or  years. 

The  revised  statutes  contain  minute  provisions  for  the  proceedings 
in  cases  of  this  kind,  which  are  to  some  extent  modified  as  to  form 
by  the  code  of  procedure.  Whenever  any  half  year's  rent,  or  more, 
shall  be  in  arrear  from  any  tenant  to  his  landlord,  and  no  sufficient 
distress  can  he  found  on  thejjremises,  to  satisfy  the  rent  due,  if  the 
landlord  has  a  subsisting  right  by  law  to  re-enter  for  the  non-pay- 
ment of  such  rent,  he  may  bring  an  ejectment  for  the  recovery  of  the 
possession  of  the  demised  premises  ;  and  the  service  of  a  declaration 
thereon  shall  be  deemed  to  stand  instead  of  a  demand  of  the  rent  in 
arrear  and  of  a  re-entry  on  the  demised  premises.  The  notice,  we 
have  seen,  under  the  3d  section  of  the  act  of  1846,  is  a  substitute 
for  the  proof,  formerly  required,  that  no  sufficient  distress  can  be 
found  ;  which  is  obviously  a  superfluous  requirement,  since  the  right 
of  distress  has  been  abolished.  The  service  of  the  declaration  under 
the  former  practice,  has  been  superseded  by  the  present  mode  of 


214  USE  AND  OCCUPATIOK 

commencing  actions,  under  the  code  of  procedure.  The  one  is  an 
equivalent  for  the  other. 

The  landlord  or  owner  of  the  rent  is  not  confined  to  his  action  of 
ejectment,  for  the  recovery  of  his  rent.  He  may  bring  an  ap})ropri- 
ate  action  upon  the  covenant  in  the  lease  for  the  payment  of  the  rent, 
and  which,  we  have  seen,  is  a  covenant  running  with  the  land,  and 
thus  giving  a  right  of  action  to  the  assignee  of  the  rent  in  his  owu 
name,  against  the  person  who  is  the  assignee  of  the  lessee,  the  party 
charged  with  the  payment  of  it. 

The  question  whether  interest  is  recoverable  upon  rents  in  arrear 
has  given  rise  to  much  discussion,  but  has  been  settled  in  this  state, 
in  ftivor  of  the  right  to  interest,  whether  the  rent  be  payable  in  money 
or  in  produce,  or  any  other  thing.  (  Van  Rensselaer  v.  Jones,  supra. 
Clark  V.  Barlow,  4  John.  183.  Van  Rensselaer  v.  Jewett,  2  Comst. 
135.  Lush  V.  Druse,  4  Wend.  313.)  Though  it  could  not  be  dis- 
trained for  under  the  former  law.     {Lansing  v.  Rattoone,  6  John.  43.) 

There  are  various  other  questions  which  often  arise  in  the  law  of 
landlord  and  tenant,  which  we  have  not  room  to  discuss.  At  com- 
mon law  the  action  for  use  and  occupation  of  premises  could  not  be 
maintained,  if  an  actual  demise  were  shown.  The  English  statute 
of  11  Geo.  2,  ch.  19,  §  14,  provides  that  when  the  agreement  is  not 
by  deed,  a  landlord  may  recover  "  a  reasonable  satisfaction  for  the 
lands,  tenements  or  hereditaments,  held  or  occupied  by  the  defend- 
ant or  defendants,  in  an  action  on  the  case  for  the  use  and  occupa- 
tion of  what  was  so  held  or  enjoyed;"  and  if  any  agreement,  not 
being  by  deed,  shall  be  proved,  "  by  which  a  certain  rent  was  reserv- 
ed, it  may  be  used  as  an  evidence  of  the  quantum  of  the  damages  to 
be  recovered."  (Comyn^s  Land.  (&  Ten.  435.)  The  statute  of  New 
York  on  the  same  subject  varies,  in  some  respects,  from  the  above. 
It  is  enacted  that  any  landlord  may  recover  in  any  action  on  the  case, 
a  reasonable  satisfaction  for  the  use  and  occupation  of  any  lands  or 
tenements,  by  any  person  under  any  agreement  not  made  by  deed  ;  and 
if  any  parol  demise  or  other  agreement  not  being  by  deed,  by  which 
a  certain  rent  is  reserved,  shall  appear  in  evidence  on  the  trial  of  any 
such  action,  the  plaintiff  shall  not,  on  that  account,  be  debarred 
from  a  recovery,  but  may  make  use  thereof  as  evidence  of  the  amount 
of  the  damages  to  be  recovered.  (1  R.  S.  748,  §  26.)  The  former 
statute  of  New  York  was  very  similar  to  that  of  11  Geo.  2.  (1 R.  L. 
444,  §  31.)     The  words  "  held  or  occupied"  are  to  be  found  in  both. 


USE  AND  OCCUPATION.  215 

Under  these  words  it  has  been  adjudged  that  assumpsit  foi  use  and 
occupation  will  lie,  although  there  has  not  been  an  actual  occupa- 
tion for  the  whole  of  the  time  in  respect  of  which  the  action  is 
brought ;  a  legal  possession  being  sufficient  to  maintain  it,  and  the 
defendant  being  thus  liable  for  constructive,  as  well  as  actual  occu- 
pation.    {Pincro  v.  Judson,  6  Bing.  206.) 

The  words  "  held  or  occupied "  are  not  contained  in  the  revised 
statutes.  The  words  now  are  that  a  recovery  may  be  had  of  "a  rea- 
sonable satisfaction  for  the  use  and  occupation  of  any  lands  or  tene- 
ments, by  any  person  under  any  agreement  not  made  by  deed." 
These  words  would  seem  to  authorize  a  more  restricted  construction 
than  the  act  of  11  George  2d,  and  to  exclude  a  mere  constructive 
holding.    {See  per  Beardsley,  J.  in  Cleves  v.  WiUougliby,  7  Hill,  88.) 

In  Westlahe  v.  De  Grata,  (25  Wend.  669,)  the  tenant  hired  the 
house  for  a  year  at  a  rent  of  $601  annually,  payable  quarterly.  He 
paid  the  rent  for  the  two  first  quarters  and  then  left  the  premises,  al- 
leging that  they  were  uninhabitable  by  reason  of  intolerable  stenches 
in  the  basement.  There  was  no  fraud  on  the  part  of  the  landlord, 
and  he  actually  sent  a  mechanic  to  ascertain  the  cause  of  the  stench 
and  to  remove  it,  but  the  defendant  refused  to  stay.  The  cause  was 
ascertained  to  be  dead  rats  under  the  steps  of  the  house,  which, 
with  ordinary  skill  and  attention  by  the  tenant,  might  have  been 
removed.  It  was  readily  removable  when  discovered,  and  was,  in 
its  own  nature,  of  temporary  duration.  The  court  held  that  the 
landlord  could  recover  for  the  remainder  of  the  year,  as  for  use 
and  occupation,  if  the  contract  remained  in  force.  The  voluntary 
deserting  of  the  premises  by  the  tenant,  for  an  inadequate  cause,  was 
held  to  be  no  defense  to  the  action.  Although  the  defendant  did 
not  actually  occupy  for  the  remainder  of  the  year,  he  might  have 
done  so,  and  was  not  prevented  by  any  wrongful  act  of  the  landlord. 
This,  in  short,  was  applying  the  same  rule  which  the  English  courts 
would  follow  under  the  statute  of  11  George  2d,  and  our  courts  un- 
der the  former  law.  [Starkie's  Ev.  853.  Comyn's  Landlord  and 
Tenant,  450.) 

But  no  action  will  lie  under  the  statute  for  use  and  occupation 
when  the  defendant  never  went  into  possession  of  the  demised  prem- 
ises under  the  agreement,  either  personally  or  by  an  agent  or  under 
tenant.  ( Wood  v.  Wilcox,  1  Denio,  37.  Crosivell  v.  Crane, 
7  Barh.  191.     Beach  v.  Gray,  2  Denio,  84.) 

When  the  defendant  enters  under  a  parol  demise,  and  afterwards 


216  USE  AND  OCCUPATION. 

abandons  the  premises,  and  the  Landlord  gives  him  notice  that  he 
will  let  them  to  another  person,  and  does  so  accordingly,  he  cannot 
afterwards  maintain  an  action  for  use  and  occupation  against  the 
original  tenant  for  the  period  during  which  the  premises  were  occu- 
pied by  the  tenant  to  whom  the  landlord  has  again  let  the  premises, 
though  the  latter  has  proved  to  be  insolvent.  Such  tenant  can,  in 
no  sense,  be  treated  as  the  agent  or  under  tenant  of  the  original  ten- 
ant, and  the  latter  is  therefore  not  responsible  to  this  action. 
{Beach  v.  Gray,  suj^ra.) 

Nor  can  the  action  be  maintained  when  the  relation  of  landlord 
and  tenant,  between  the  parties,  does  not  exist ;  and  therefore  it 
will  not  lie  against  a  person  who  comes  in  under  the  plaintiff  as  a 
purchaser  from  him,  {Bancroft  v.  Wardivell,  13  JoJm.  489.)  Nor 
will  it  lie  against  a  tenant  holding  over,  against  whom  summary 
proceedings  are  forthwith  commenced  on  the  expiration  of  the  term 
by  virtue  of  which  he  is  ejected.  {Featherstonaugh  ads.  BradshaiOj 
1  Wend.  134.)  The  remedy  in  such  a  case  is  an  action  for  tho 
mesne  profits,  and  which  is  not  founded  on  contract. 

But  it  will  lie  against  a  lessee  by  deed  who  holds  over  after  the 
expiration  of  his  term.  The  court  said  that  the  law  in  such  a  case 
creates  a  tenancy  from  year  to  year,  and  the  tenant  cannot  be  turned 
off  without  a  previous  notice  to  quit.  {Abeel  v.  Eadcliff,  13  John. 
297.     Doe  v.  Bell,  5  T.  R.  467.) 

It  has  sometimes  been  made  a  question  whether  the  tenant  can 
interpose  as  a  defense  the  untenantable  condition  of  the  premises. 
The  revised -statutes  provide  that  no  covenant  shall  be  implied  in  any 
conveyance  of  real  estate,  whether  such  conveyance  contains  special 
covenants  or  not.  (2  R.  S.  738,  §  140.)  The  maxim  caveat  emptor 
applies  to  the  transfer  of  all  property,  real,  personal  and  mixed ; 
and  the  purchaser  generally  takes  the  risk  of  its  quality  and  condi- 
tion, unless  he  protects  himself  by  an  express  agreement  on  the  sub- 
ject. A  sale  of  provisions  for  domestic  use,  (  Van  BracUin  v.  Fon- 
da, 12  John.  468,)  and  a  demise  of  ready  furnished  lodgings,  {Smith 
V.  Marrable,  \  G.  &  M.  479,)  may  be  mentioned  as  exceptions ;  for 
as  to  them  the  law  implies  a  warranty  that  the  former  are  wholesome, 
and  the  latter  free  from  nuisance.  {Gleves  v.  Willoughby,  per  Brad- 
ley, J.  7  Hill,  86.) 

There  are  some  few  English  cases  which  tend  to  show  that  the 
tenant  may  quit  the  premises  without  being  liable  for  use  and  occu- 
pation, if  the  jury  find  that  the  premises  were  unfit  for  proper  and 


RENT,  WHEN  SUSPENDED.  217 

comfortable  occupation,  and  the  defendant  had  quit  them  honafide 
for  that  cause,  as  soon  as  he  could  get  others.  (Cotvie  v.  Goodwin, 
9  Car.  &  Payne,  378.  Salisbury  v.  Marshall,  4  id.  Q5.)  And  there 
are  several  other  cases  to  the  like  effect. 

When  there  is  no  fraud  in  the  landlord,  or  misdescription  of  the 
premises,  and  no  particular  agreement  to  put  them  in  repair  is  made 
by  the  landlord,  the  tenant  takes  them  for  better  or  for  worse,  and 
the  former  is  under  no  obligation  to  repair.  [Cleves  v.  Willoughhy, 
7  Hill,  90,  per  Beardsley,  J.  llumford  v.  Brown,  6  Coiven,  475. 
Westlake  v.  Be  Grata,  25  Wejid.  669.  Comyn's  Land,  and  Tenant, 
185.     Taylor's  Land,  and  Ten.  166.) 

The  statute  against  implying  covenants  is  founded  in  wise  policy, 
and  will  cause  the  tenant  to  exert  his  vigilance  to  detect  the  incon- 
veniences before  he  takes  the  premises,  or  guard  himself  by  proper 
covenants. 

The  law  has  given  to  the  landlord  various  other  remedies,  besides 
those  hitherto  enumerated.  The  revised  statutes  contain  suitable 
and  minute  provisions  to  enable  the  landlord  to  regain  the  possession 
of  the  demised  premises,  in  case  the  tenant  holds  over,  being  in  ar- 
rear  for  rent,  or  deserts  the  premises  leaving  them  unoccupied  and 
uncultivated.     (2  R.  S.  519.     3  id.  835,  5th  ed.) 

To  bring  a  case  within  the  statute,  the  conventional  relation  of 
landlord  and  tenant  must  exist.  A  grantor  in  possession  after  he 
has  parted  with  his  title,  though  he  may  be  a  tenant  at  suiferance, 
cannot  be  dispossessed  under  the  act.  Nor  can  a  mortgagee  enforce 
the  agreement  of  the  defaulting  mortgagor  to  surrender  possession. 
{Evertson  v.  Sutton,  5  Wend.  281.  Boach  v.  Cosine,  9  id.  227. 
Sims  V.  Humjjhreys,  4  Be7i.  185.) 

The  statute,  since  its  enactment  in  1820,  has  been  greatly  im- 
proved and  extended.  It  has  been  made  applicable  to  a  holding 
over  after  a  sale  of  the  premises  under  a  judgment  and  execution 
and  the  forfeiture  of  the  title;  and  the  remedy  has  been  given 
against  a  tenant  or  lessee  for  three  years  or  more,  who  obtains  a  dis- 
charge under  the  insolvent  act.  (3  B.  S.  836,  §  28,  suhd.  3,  4,  5th  ed. 
SpraJcer  v.  Cook,  2  Smith,  567.  Broion  v.  Belts,  13  JFewd  29. 
Hallenhack  v.  Garner,  20  id.  22.) 

Rent  may  be  suspended,  or  extinguished.  The  first  is,  in  general, 
temporary  in  its  operation ;  the  last,  final. 

The  entry  of  the  landlord  into  part  of  the  premises  unlawfully, 


218  RIGHT  TO  LIGHT  AND  AIR. 

works  a  temporary  suspension  of  the  whole  rent.  The  landlonl  can- 
not apportion  the  rent  by  his  own  wrongful  act.  The  suspennidn 
■will  cease,  however,  on  a  restoration  of  the  premises  to  the  tenant. 
{Lewis  V.  Payn,  4  Wend.  423.  Bac.  Ahr.  tit.  Rent,  M.  Co.  Litt. 
148  b.     9  Coke,  135  a.) 

An  extinguishment  is  brought  about  by  a  union  of  the  right  to 
the  land  and  to  the  rent  issuing  out  of  it,  in  the  same  person.  This 
may  be  effected  by  a  release  of  the  reversion  to  the  tenant,  or  by  the 
surrender  by  the  latter  to  the  landlord.  (Nellis  v.  Lathrop,  22  Wend. 
121.  Decker  v.  Livingston,  15  John.  479.  Shepard  v.  Merrill, 
2  John.  Ch.  276.     Springstein  v.  Schermerhorn,  12  John.  357.) 

Kent  is  not  extinguished  by  a  bond  being  given  for  it.  {Cornell 
V.  Lamb,  20  Joh7i.  407.)  Nor  by  the  recovery  of  a  judgment  for  it, 
until  the  later  be  satisfied.  {Chipman'  v.  Martin,  13  John.  240. 
Drake  v.  Mitchell,  3  East,  258.)  Neither  a  bond  or  a  judgment  is 
of  a  higher  nature  than  the  rent,  and  the  latter  is  therefore  not  merged. 

We  mentioned  in  the  former  part  of  this  chapter,  that  we  should, 
in  conclusion,  add  some  observations  on  such  easements  as  bear  an 
analogy  to  the  topics  already  discussed.  The  right  to  the  enjoy- 
ment of  light,  air  and  -water,  gives  occasion  to  the  application  of 
some  of  the  most  interesting  and  important  principles  of  law.  These 
elements  are  common  to  all ;  and  though  they  do  not  admit  of  an 
exclusive  appropriation  in  the  broadest  sense  of  the  term,  they  are 
nevertheless  so  essential  to  the  enjoyment  of  real  estate,  that  the  in- 
dividual owner  may  have  such  a  property  in  them,  that  the  law  will 
protect  from  infringement. 

The  right,  with  respect  to  the  light,  is  said  to  depend  on  the 
maxim,  ctijus  est  solum,  ejus  est  usque  ad  caelum  et  ad  inferos. 
{Crabbe's  Law  of  Real  Property,  §  445.  Mahan  v.  Broivn,  13 
Wend.  263.)  A  man  who  erects  a  house  on  his  own  land  is  enti- 
tled to  all  the  light  and  air  that  will  come  to  him,  from  above. 
That  which  comes  to  him  in  a  lateral  direction,  and  which  he  se- 
cures through  his  windows,  is  an  easement.  It  may  pass  over  the 
land  of  others,  who  possess  the  same  right  to  it,  and  who,  by  the 
erection  of  fences  or  buildings,  may  obstruct  its  passage.  The  ques- 
tion, therefore,  often  arises,  under  what  limitation  the  right  can  be 
enjoyed. 

In  England,  it  is  said  that  an  action  may  be  maintained  for  the 
obstruction  of  the  plaintiffs  ancient  lights,  and  that  evidence  of  an 


RIGHT  TO  AIR  AND  LIGHT.  219 

uninterrupted  use  and  enjoyment  of  the  light  for  the  space  of  twenty- 
years  will  raise  a  iwhna  faciQ  presumption  of  a  legal  title  to  enjoy  it. 
(2  Starkie's  Ev.  538,  938.  Mahan  v.  Brown,  13  Wend.  263.)  But 
in  a  later  case,  in  this  state,  this  doctrine  seems  to  have  been  quali- 
fied. The  presumption  of  a  right  by  grant  or  otherwise,  as  applied 
to  the  windows  of  one  person  overlooking  the  land  of  another,  so  that 
by  an  uninterrupted  enjoyment  for  twenty  years  the  owner  acquires 
a  right  of  action  against  his  neighbor  for  stopping  the  lights  by  the 
erection  of  a  building  upon  his  own  land,  it  was  said,  forms  no  part 
of  our  law.  Such  a  law.  the  court  thought,  was  not  adapted  to  the 
circumstances  or  existing  state  of  things  in  this  country.  The  ques- 
tion of  a  presumptive  right  by  grant  or  otherwise,  although  it  may 
have  been  enjoyed  for  twenty  years  or  more,  without  interruption, 
must  be  submitted  to  the  jury ;  who  should  be  told  that  they  may 
presume  a  grant,  if  there  be  no  evidence  to  repel  the  presumption. 
The  court  also  held,  that  to  authorize  the  presumption  of  a  grant, 
the  enjoyment  of  the  easement  must  not  only  have  been  uninterrupt- 
ed for  the  period  of  twenty  years,  but  it  nmst  have  been  adverse — 
not  by  leave  or  favor — but  under  a  claim  or  assertion  of  right ;  and 
it  must  be  with  the  knowledge  and  acquiescence  of  the  owner, 
(Parker  v.  Foote,  19  Wend.  309.  Banks  v.  American  Tract  Soci- 
ety, 4  Sand.  Ch.  R.  464.) 

As  user  affords  evidence  of  a  right,  so  non-user  is  evidence  of  a 
relinquishment. 

If  a  person  builds  on  his  own  land,  and  afterwards  sells  a  lot  ad- 
joining his  house,  without  restriction,  to  a  third  person,  the  latter 
may  build  so  near  as  to  obstruct  the  windows  of  his  grantor.  The 
grantor  should  have  protected  his  own  premises  by  a  condition  in 
his  grant  of  the  adjoining  lot,  or  by  a  covenant  not  to  obstruct  his 
lights.  Neither  light,  air  or  prospect  can  be  the  subject  of  a  direct 
grant.  They  can  only  be  secured  by  covenant,  agreement  or  condi- 
tion.    {Parker  v.  Foote,  supra,  316.) 

If  a  man  so  constructs  his  house  as  to  overlook  the  privacy  of  his 
neighbor's  grounds,  the  latter  has  no  remedy  but  to  erect  a  wall  or 
a  fence  upon  his  own  land,  so  as  to  prevent  the  consequences. 
(2  Starkie's  Ev,  938.     Mahan  v  Broivn,  supra.) 

The  same  principle  is  applicable  to  the  enjoyment  of  pure  air. 
Hence  the  owner  or  occupier  of  a  dwelling  house  has  a  right  of  ac- 
tion against  one  who  shall,  on  his  own  land  or  otherwise,  so  poison 
the  air  as  to  render  it  unwholesome.     What  erections  will  amount 


220  RIGHT  TO  RUNNING  WATER. 

to  a  nuisance  depends,  in  some  manner,  upon  circumstances.  In 
one  case,  the  erection  of  a  tallow  furnace  so  near  an  innkeeper  that 
his  guests  left  him,  in  consequence  of  the  stench,  {Mosley  v.  Prag- 
nell,  Cro.  Car.  510,)  was  held  to  be  a  nuisance.  In  another  case 
the  erection  of  a  hog  house  and  putting  hogs  therein,  so  that  by 
reason  of  the  fetid  smells  the  plaintiff  and  his  family  could  not  re- 
main in  his  house,  was  in  like  manner  held  to  be  a  nuisance.  [Al- 
dred's  case,  9  Co.  58.)  In  both  the  above  cases  an  action  was  held 
to  lie.  {See  note  to  Aldred's  case,  supra,  loliere  most  of  the  cases 
are  collected  atid  examined.) 

The  right  to  running  water  on  a  man's  own  land  is  as  perfect  as 
his  right  to  the  land  itself.  No  one  has  a  right  to  divert  it  from  its 
natural  course  without  the  consent  of  the  owner  of  the  land,  or  to 
corrupt  it  so  as  to  render  it  unfit  for  use.  {Gardner  v.  Triistees  of 
Neivhurgh,  2  John.  162.  Carhart  v.  The  Auburn  Gas  Light  Co. 
22  Barb.  297.)  Nor  will  he  be  permitted  maliciousbj  to  diminish  the 
water  which  penetrates  through  the  ground  into  his  neighbor's  well ; 
though  he  may  dig  a  well  on  his  own  land,  if  it  be  necessary,  and  is 
not  responsible  to  his  neighbor,  if  thereby  the  quantity  of  water 
which  would  otherwise  penetrate  into  his  neighbor's  well,  be  lessened. 
(G)-ee7ileaf  y.  Frajicis,  18  Pick  117.  Beach  v.  Driscoll,  20  Conn. 
Rep.  542.)  But  a  man  has  a  right  to  the  free  and  absolute  use  of 
his  own  land,  so  long  as  he  does  not  directly  invade  that  of  his 
neighbor.     {Ellis  v.  Duncan,  21  Barb.  230.) 

The  riparian  owners,  prima  facie,  own  to  the  thread  of  the  stream, 
if  it  be  above  the  ebb  and  flow  of  the  tide  ;  and  if  it  be  in  fact  nav- 
igable, are  entitled  to  the  enjoyment  of  it  subject  to  the  public  use 
of  it  as  a  highway,  and  to  compensation  for  the  diversion  of  its  wa- 
ters to  public  use  to  the  injury  of  their  mills.  {The  People  v.  The 
Canal  Appraisers,  17  Wend.  572,  reversing  previous  cases,  13  id. 
355.     Walton  v.  Tefft,  14  id.  216.) 

Hence  if  a  grant  of  land  be  made  as  cdong  the  river,  or  by  the 
river,  or  up)on  the  margin  of  the  river,  or  to  the  banks  of  the  river, 
or  along  a  highivay,  or  vj^^n  a  highivay,  or  to  a  highway,  such 
grant  carries  the  premises  in  the  one  case  to  the  center  of  the  river, 
and  in  the  other  to  the  center  of  the  highway.  ( Walton  v.  Tefft, 
supra.  Per  Waliuorth,  in  Canal  Com.  v.  TJie  People,  5  Wend.  443. 
Same  v.  Eempshall,  26  id.  404.     Child  v.  Starr,  4  Hill,  369,  373. 


HYDRAULIC  WORKS.  221 

Varich  v.  Smith,  9  Paige,  547.     Fx  parte  Jenings,  6  Cowen,  518. 
5  Co.  Bep.  106.) 

It  is  competent  for  the  parties,  by  the  terms  of  the  grant,  in  the 
one  case  to  exclude  the  river,  and  in  the  other  to  exclude  the  high- 
way; but  unless  they  are  in  terms,  or  by  necessary  implication,  ex- 
cluded, the  grantee  will  take  to  the  center  of  the  stream  in  the  one 
case,  and  to  the  center  of  the  highway  in  the  other.  (Xwce  v.  Car- 
ley,  24  Wend.  451.  Child  v.  Starr,  4  Hill,  369.  S.  C.  5  Denio, 
599.  Jackson  v.  Hathaway,  15  John.  454.  Dovaston  v.  Payne, 
2  Smith's  Lead.  Cas.  by  Hare  &  Wallace,  192,  193.  Angell  on 
Water  Courses,  21  ^o  41.) 

When  hydraulic  works  are  erected  on  opposite  banks  of  a  stream, 
if  there  is  not  sufficient  water  for  a  full  supply  of  all,  the  owner  on 
each  side  is  entitled  to  an  equal  share  of  the  water,  or  so  much  of  it 
as  is  necessary  for  his  mills,  if  less  than  a  moiety  is  sufficient.  If 
the  owner  of  the  mills,  on  either  side,  has  been  in  the  quiet  enjoy- 
ment of  the  water  privilege,  and  the  other  attempts  to  deprive  him 
of  it,  and  thus  destroy  his  mills,  a  preliminary  injunction  is  the 
proper  remedy.  {Arthur  v.  Case,  1  Paige,  447  ;  affirmed.  Case  v. 
Haight,  3  Wend.  632.) 

The  owner  of  the  soil  on  a  public  river  has  a  right  to  erect  a  mill 
on  his  land.  But  he  must  construct  his  dam  and  use  the  water  so 
as  not  to  injure  his  neighbor  below,  in  the  enjoyment  of  the  same 
water,  according  to  its  natural  course ;  and  if  he  so  diverts  the  wa- 
ter as  to  injure  the  mill  of  another,  he  is  liable  to  damages  to  the 
amount  of  the  injury  sustained.  (Sackrider  v.  Beers,  10  John.  241 
Van  Bergen  v.  Van  Bergen,  2  JoJm.  Ch.  272.) 

The  erection  of  a  dam  upon  a  stream  does  not  confer  an  exclusive 
rio-ht  to  the  use  of  the  water,  by  an  occupancy  short  of  the  time 
sufficient  to  raise  the  presumption  of  a  grant.  A  person  may  there- 
fore lawfully  erect  a  mill  and  dam  on  the  stream  above,  though  the 
water  be  thereby  in  part  diverted.  (Piatt  v.  Johnson,  15  John.  213.) 
In  case  there  be  several  owners  of  mill  seats  on  a  stream,  each 
havino-  a  common  right  to  its  use,  neither  can  maintain  an  action 
ao-ainst  the  other  for  the  reasonable  use  of  it.  But  if  the  one  above 
stops  the  natural  flow  of  the  water,  so  as  to  destroy  the  mill  below 
or  render  it  useless ;  if  he  shuts  down  his  gate,  and  detains  the  wa- 
ter for  an  unreasonable  time,  or  raises  his  gate  and  lets  out  the  wa- 
ter in  such  a  way  as  to  prevent  the  owner  of  the  mill  below  from 
usino-  it,  or  deprives  him  of  a  reasonable  and  fair  participation  in 


222  DIVERSION  OF  WATER  COURSES. 

the  benefit  of  the  stream,  he  is  liable  to  damages  to  the  extent  of  the 
loss.  {Merritt  v.  Brinkerhoff,  17  John.  306.)  The  principle  is 
that  each  must  so  use  his  own  right  as  not  unnecessarily  to  impair 
the  right  of  his  neighbor. 

The  exclusive  enjoyment  of  water  in  a  particular  way  for  twenty 
years,  without  interruption,  is  sufficient  to  raise  a  presumption  of 
title ;  and  it  is  not  necessary  that  the  water  should  have  been  used 
in  the  same  precise  manner  during  the  twenty  years,  or  that  it 
should  have  been  used  to  propel  the  same  machinery.  {Belknap  v. 
Trimble,  3  Paige,  577.  Sonith  v.  Adams,  6  id.  435.  Baldwin  v. 
Calkins,  10  Wend.  167.) 

In  case  there  be  a  spring  of  water  on  a  man's  land  Avhich  flows 
naturally  on  to  the  land  of  another,  the  owner  of  the  land  where  the 
spring  is  may  use  as  much  as  is  necessary  for  his  family  and  cattle, 
but  he  cannot  appropriate  the  whole  of  it  to  his  own  use  for  pur- 
poses of  irrigation,  if  he  thereby  deprives  his  neighbor  of  a  reasona- 
ble use  of  it.     {Arnold  v.  Foot,  12  Wend.  330.) 

The  same  principle  with  respect  to  a  diversion  of  water  courses 
applies  to  subterraneous  streams,  as  well  as  to  such  as  flow  upon  the 
surface.  {Smith  v.  Adams,  6  Paige,  435.)  The  fact  with  respect 
to  the  diversion  of  a  subterranean  stream  may  be  more  difficult  of 
proof,  but  when  the  fact  is  ascertained  the  same  legal  principles 
apply.     {Id.) 

All  the  property  that  a  man  can  acquire  in  flowing  water  is  a 
right  to  its  use ;  the  right  is  no  greater  though  it  passes  wholly 
through  his  land.  He  may  have  a  certain  right  of  property  in  it ; 
but  the  water  itself  is  not  his  property.  He  has  a  right  to  its  nat- 
ural flow,  and  to  use  it  for  his  cattle,  or  his  household,  or  upon  his 
water  wheels.  {Marshall  v.  Peters,  12  How.  Pr.  Bep.  222.)  Land, 
says  Sir  Edward  Coke,  comprehends  any  soil,  ground  or  earth,  and 
all  buildings  upon  it,  and  the  water  passing  over  it.  An  action  is 
never  brought  to  recover  water,  by  that  name,  but  is  brought  for  so 
much  land  covered  with  water.  (2  Bl.  Com.  18.)  The  mode  of 
granting  the  water  of  a  running  stream,  is  to  convey  so  much  land 
covered  with  water,  and  not  the  grant  of  the  stream  itself  {Nos- 
trand  v.  Dunham,  21  Barb,  478.  Jackson  v.  Halstead,  5  Coiven^ 
216.     Co.  Litt.  4  a.) 


DEDICATION.  223 

The  doctrine  of  dedication  extends  to  streets,  highways,  public 
squares,  burying  grounds,  and  perhaps  to  other  easements  of  a  public 
concern.  An  examination  of  its  principles  frequently  becomes  neces- 
sary in  the  investigation  of  titles  to  land.  Whether,  though  the  fee 
be  in  the  grantor,  the  public  may  not  have  acquired  an  easement  in 
the  same  premises,  is  often  an  interesting  and  difficult  question. 

A  dedication  of  land  to  public  or  pious  uses  is  a  solemn  appropri- 
ation of  it  by  the  owner  to  such  uses.  It  is  a  devoting  of  property 
for  some  proper  object  in  such  a  manner  as  to  conclude  the  owner. 
{Per  Beardsleij,  J.  6  Hill,  411.)  It  may  be  either  by  an  express 
grant  to  a  person,  or  corporation  capable  of  taking  in  trust  for  the 
public,  or  it  may  be  implied  from  the  acts  of  the  owner. 

In  the  case  of  Stuyvesant  v.  The  Mayor  &c.  of  Neio  York,  (11 
Paige,  414,)  the  dedication  was  by  an  actual  grant  by  the  owner 
of  the  land  to  the  corporation  of  the  city,  of  certain  lands  for  the 
purposes  of  a  public  square,  upon  condition  that  such  lands  should 
for  ever  be  used  and  appropriated  for  the  purpose  of  a  public  square 
exclusively,  and  upon  the  further  condition  that  the  corporation 
should  immediately  proceed  to  regulate  the  lands  granted,  and  should 
inclose  and  improve  the  same  in  the  manner  specified  in  the  con- 
veyance thereof;  and  the  corporation  joined  in  such  deed  by  execut- 
ing it  under  its  corporate  seal,  and  covenanted  to  stand  seised  of  the 
premises  for  that  purpose  exclusively,  and  that  such  corporation 
should  abide  by,  observe  and  perform  the  conditions  imposed  upon 
it  by  the  acceptance  of  such  agreement  and  conveyance.  This  was 
held  to  be  a  valid  dedication,  obligatory  upon  the  parties,  and  that 
the  corporation  was  bound  to  perform  the  conditions  specified  in 
the  conveyance. 

The  grant,  in  the  foregoing  case,  having  been  upon  condition  that 
the  grantees  would  proceed  immediately  to  regulate  the  lands  grant- 
ed, and  to  inclose  and  improve  them  within  a  reasonable  time,  the 
grantor,  it  was  held,  had  the  right,  at  his  election,  either  to  waive 
the  forfeiture  and  file  his  bill  in  equity  to  compel  a  specific  perform- 
ance of  the  covenants  and  to  compensate  him  for  the  damages  sus- 
tained by  the  neglect,  or  to  insist  upon  the  forfeiture,  and  repossess 
himself  of  the  land,  for  a  breach  of  the  condition. 

But  a  dedication  in  cases  of  this  kind  is  more  frequently  implied, 
than  by  an  express  grant  to  the  public  or  a  corporation,  in  trust. 
It  usually  occurs  where  the  owners  of  land  in  a  city  or  village,  with 


224  DEDICATION. 

a  view  to  their  own  as  well  as  the  public  advantage,  lay  it  out  into 
lots  with  streets  and  avenues  intersecting  the  same,  and  sell  the  lots 
with  reference  to  such  streets  and  avenues.  In  cases  of  this  kind 
the  original  grantor  cannot  afterwards  deprive  his  grantee  of  the 
benefit  of  having  such  streets  or  avenues  kept  open.  The  same  prin- 
ciple is  applicable  to  a  similar  dedication  of  urban  lands  to  be  used 
as  an  open  square  or  public  walk.  {The  Trustee  of  Watertoion  v. 
Cowen,  4  Paige,  510.) 

The  subject  was  very  fully  discussed  by  the  supreme  court  of  the 
United  States  in  the  case  of  the  City  of  Cincinnati  v.  The  Lessee 
of  White,  (6  Peters,  431.)  In  that  case  the  equitable  owners  of  a 
tract  of  land,  before  they  had  perfected  their  title  by  a  patent  from 
the  government,  laid  out  a  part  of  it  into  a  town  which  now  consti- 
tutes the  site  of  the  city  of  Cincinnati.  Upon  the  plot  of  the  town 
they  laid  out  and  designated  a  part  of  the  land  as  a  public  common, 
or  open  square,  for  the  use  of  the  inhabitants  of  the  town.  This  was 
held  to  be  a  sufficient  dedication  of  the  land  to  the  public,  to  vest 
the  title  to  this  common  or  square  in  the  city  of  Cincinnati ;  although 
the  city  was  not  incorporated  until  many  years  afterwards. 

The  surveying  of  land  into  building  lots,  by  the  owner,  and  selling 
them  or  any  of  them  for  that  purpose,  with  reference  to,  and  bounding 
them  on  streets  therein  designated,  amounts  to  a  dedication  of  the 
streets,  and  on  their  being  opened  by  the  public  authorities  he  is  en- 
titled, as  owner  of  the  fee,  to  only  a  nominal  compensation.  The 
purchaser  is  presumed  to  pay  an  enhanced  price  for  the  anticipated 
easement,  and,  therefore,  the  original  owner  has  no  equitable  claim 
to  a  remuneration  from  the  public,  {flatter  of  Leiois  Street, 
2  Wend.  4:72,  overruling  4  Cowen,  452.  Livingston  v.  3Ia7jor  of 
New  York,  8  Wend.  55.  Wyman  v.  Same,  11  id.  486.  Matter  of 
Freeman  Street,  17  id.  661.  Matter  of  Thirty-Second  Street,  19  id. 
128.  Matter  of  Tiventy- Ninth  Street,  1  Hill,  189.  Matter  of  Thir- 
ty-Ninth Street,  Id.  191.) 

And  this  is  so  whether  the  owner  bounds  his  grantees  on  the  cen- 
ter of  the  street,  or  on  the  side  of  it.  (Id.)  If  the  grant  be  bounded 
on  the  center  of  the  street,  such  act  alone,  without  an  user  by  the 
public,  is  deemed  a  dedication  of  the  land  over  which  the  street 
passes  to  the  public  use,  so  far  forth  that  on  the  opening  of  the 
street,  the  purchaser  is  entitled  only  to  a  nominal  sum  as  compensa- 
tion for  the  fee.     [flatter  of  Thirty-Second  Street,  su;pra.) 


DEDICATION.  225 

When  a  street  is  thus  dedicated  to  the  public,  but  before  it  has 
been  accepted  or  recognized  by  the  proper  public  officers  as  a  public 
street,  it  has  been  doubted  whether  the  grantee  of  a  lot  bounded  on 
such  a  street  may  be  considered  as  taking  to  the  center  of  the  street, 
so  as  to  enable  him  to  maintain  an  action  against  another  for  dig- 
ging the  street  opposite  to  his  lot  and  removing  the  earth  therefrom, 
or  whether  he  has  merely  an  easement  or  right  of  way  in  the  street. 
(  Willougliby  v.  Jenks,  20  Wend.  96.)  It  would  seem,  on  principle, 
that  his  title  extends  to  the  center  of  the  street  in  such  a  case. 
(2  Smith's  Lead.  Oas.  note  180  to  188,  lohere  the  subject  is  f idly 
discussed  and  many  of  the  cases  are  ably  revieived.)  Should  the 
grantee  be  limited  in  terms  to  the  exterior  line  of  the  street,  the  fee 
of  the  land  in  the  street  would  remain  in  the  original  owner,  sub- 
ject to  the  easement  of  a  way.  In  the  absence  of  such  express  lim- 
itation, the  cases  before  referred  to  under  this  head,  carry  the  grantee 
to  the  center  of  the  street. 

After  such  dedication,  if  the  title  to  the  street  remains  in  the 
orisrinal  grantor,  he  cannot  use  it  in  a  manner  inconsistent  with  the 
dedication,  and  should  he  sell  it  to  others,  the  purchaser  would  take 
the  fee  subject  to  the  dedication.  ( Wyman  v.  Mayor  of  Neiu  Yorh, 
11  Wend.  486.) 

But  where  lands  are  thus  dedicated  by  the  original  owner  to  pub- 
lic use  as  a  street,  such  street  does  not  become  a  public  highway  un- 
til it  is  accepted  as  such  by  the  public  authorities.  {The  City  of 
Osiuego  v.  The  Osivego  Canal  Property,  2  Seld.  257.  Clements  v. 
The  Village  of  West  Troy,  16  Barb.  251  ;  S.  G.  10  Hoio.  199. 
Bissell  V.  The  Neio  York  Central  Bail  Boad  Go.  26  Barb.  630.) 
If,  however,  the  street  be  opened  and  used  uninterruptedly  for  a 
period  of  twenty  years  or  over,  it  affords  evidence  of  acceptance,  and 
it  becomes  a  public  street,  {Wiggins  y.  Talmadge,  11  Barb.  457. 
Goidd  V.  Glass,  19  id.  179,  195.  10  How.  199.)  A  user  of  twenty 
years  or  upwards  is  thus  made  equivalent  to  a  laying  out  of  the  road 
by  public  authority,  or  an  acceptance  by  the  proper  officers. 

The  same  principle  of  acquiring  a  right  to  a  street  or  a  way  by 
usage  is  extended  to  rivers.  A  usage  for  a  period  of  twenty-five 
years  for  rafting  boards  and  timber,  though  the  river  be  not  naviga- 
ble in  the  common  law  sense  of  the  term,  and  the  fee  of  its  bed  is 
in  the  owners  of  the  adjoining  land,  becomes  a  public  highway,  for 

Will.— 15 


226  DEDrOATIOK 

such  purposes.  The  free  use  of  the  waters  which  can  be  made  sub- 
servient to  commerce,  has,  by  the  general  consent  of  mankind,  been 
considered  as  a  thing  of  common  right.  Individuals  who  occupy 
the  adjoining  banks  may  use  the  waters  for  their  own  emolument, 
so  far  only  as  it  can  be  done  without  any  material  interruption  of 
the  public  use.  {Shata  v.  Craivford,  10  John.  236.  The  People  v. 
Piatt  17  id.  195,  212.)  But  the  doctrine  of  dedication  does  not 
extend  to  a  right  of  landing  and  depositing  manure  &c.  from  a  nav- 
igable stream  upon  adjoining  land.  (Pearsall  v.  Post,  20  Wend. 
Ill,  affirmed,  22  id.  425.)  Nor  to  a  private  stream  which  can 
only  be  used  for  a  short  time  in  each  year.  {Munson  v.  Hunger- 
ford,  6  Barh.  265.) 

The  dedication  of  property  is  not  confined  to  streets,  public 
squares,  and  the  like.  It  may  be  extended  to  pious  and  charitable 
objects  ;  to  churches,  court  houses,  and  other  public  buildings ;  to 
a  spring  of  water  for  public  use,  and  for  a  burying  ground.  {Mc- 
Connell  v.  The  Trustees  of  Lexington,  12  Wheat.  582.  Beaty  v. 
Kurtz,  2  Peters,  5QQ.  State  v.  Trask,  6  Vt.  R.  351.  Hunter  v. 
The  Trustees  of  Sandy  Hill,  6  Hill,  407.  Potter  v.  Chapin,  6 
Paige,  639.) 

"  The  law  which  governs  such  cases  is  anomalous.  Under  it 
rights  are  parted  with  and  acquired  in  modes  and  by  means  unusual 
and  peculiar.  Ordinarily  some  conveyance  or  written  instrument  is 
required  to  transmit  a  right  to  real  property  ;  but  the  law  applica- 
ble to  dedications  is  different.  A  dedication  may  be  made  without 
writing;  by  act  in  pais,  as  well  as  by  deed.  It  is  not  at  all  necCvS- 
sary  that  the  owner  should  part  with  the  title  which  he  has  ;  for 
dedication  has  respect  to  the  possession  and  not  the  permanent  es- 
tate. Its  effect  is  not  to  deprive  a  party  of  title  to  his  land,  but  to 
estop  him,  while  the  dedication  continues  in  force,  from  asserting 
that  right  of  exclusive  possession  and  enjoyment  which  the  owner  of 
property  ordinarily  has.  The  principle  upon  which  the  estoppel 
rests  is,  that  it  would  be  dishonest,  immoral,  or  indecent,  and  in 
some  instances  even  sacrilegious,  to  restrain  at  pleasure  property 
which  has  been  solemnly  devoted  to  the  use  of  the  public,  or  in  fur- 
therance of  some  charitable  or  pious  use.  The  law,  therefore,  will 
not  permit  any  one  thus  to  break  his  own  plighted  faith ;  to  disap- 
point honest  expectations  thus  excited,  and  upon  which  reliance  lias 
been  placed."     (Per  Beardsley,  J.  in  Hunter  v.  Trustees  of  Sandy 


DEDICATION.  227 

Hill,  supra,  411,  412.     Cincinnati  v.  Lessee  of  Wliite,  6  Peters, 
431,  438.) 

The  statute  of  frauds  (2  R.  S.  134,  §  6,)  does  not  make  it  neces- 
sary that  a  dedication  of  lands  for  public  or  pious  uses  should  be  by 
deed,  or  by  an  instrument  in  writing.  It  expressly  excepts  from 
that  requirement  such  transfers  of  an  interest  in  land  as  are  made 
hy  operation  of  lata. 


PART  11. 

OF  EQUITABLE  ESTATES. 


IN  this  part  of  our  treatise  we  propose  to  pass  under  review  the 
law  with  respect  to  uses,  trusts,  powers,  marriage  settlements 
and  merger. 

It  embraces  that  branch  of  the  law  of  real  property,  which  was 
originally  administered  almost  exclusively  by  courts  of  equity,  and 
which,  at  the  present  day,  requires  the  frequent  interposition  of 
equity  to  afford  relief  As  the  doctrine  of  uses,  trusts  and  powers, 
underwent  radical  changes  in  this  state,  at  the  revision  of  the  stat- 
utes in  1830,  and  as  these  statutes  were  intended  to  supersede  the 
former  practice  and  laws  of  the  state,  it  is  deemed  advisable  that  we 
should  retain  the  same  divisions  of  the  subject. 

Marriage  settlements  owe  their  origin,  in  a  great  measure,  to  the 
doctrine  of  uses  and  trusts,  and  derive  their  efi&cacy  from  the  same 
source.  They  may,  therefore,  appropriately  be  treated  under  this 
head.  And  the  law  of  merger  has  such  a  connection  with  both  legal 
and  equitable  estates,  that  it  may  with  great  propriety  be  discussed 
in  this  place. 

We  shall  treat  of  uses  and  trusts  together  in  the  first  chapter,  and 
the  other  subjects  of  this  part,  in  successive  chapters. 


CHAPTER  I. 

OF  USES  AND  TRUSTS. 


It  is  impossible  fully  to  comprehend  the  provisions  of  the  revised 
statutes  on  the  subject  of  uses  and  trusts,  without  some  knowledge 
of  the  system  which  was  previously  in  force,  and  which  the  new 

(228.) 


USES  AND  TRUSTS.  229 

system  was  intended  to  supplant.  The  enactment  is,  that  nses  and 
trusts,  except  as  authorized  and  modified  by  the  same  statute,  are 
abolished  ;  and  every  estate  and  interest  in  lands  shall  be  deemed  a 
legal  right,  cognizable  as  such  in  the  courts  of  law,  except  when  oth- 
erwise provided  in  the  same  chapter.     (1  B.  S.  T21,  §  45.) 

It  has  sometimes  been  argued  that  questions  growing  out  of  the 
law  of  trusts  should  be  treated  as  if  the  legislature  had,  m  the  first 
instance,  annulled  all  trusts,  and  then  proceeded  to  a  new  creation. 
This  is  an  erroneous  view  of  the  subject.  It  is  more  correct,  as  was 
observed  by  Gardiner,  J.  in  Leggett  v.  Perkins,  (2  Comst.  307,)  to 
say,  that  they  abolished  all  that  they  have  not  recognized  as  existing. 
The  trusts  preserved  have  their  foundation  in  the  common  law,  and 
their  effect  is  to  be  determined  by  the  application  of  common  law 

principles.  _ 

At  common  law,  an  use  was  neither  jws  in  re,  nor  ad  rew;  that 
is,  neither  an  estate  nor  a  demand.  It  was  a  trust  reposed  by  any 
person  in  the  terretenant,  that  he  may  suffer  him  to  take  the  profits, 
and  that  he  will  perform  his  intent.  It  was,  in  short,  an  owner- 
ship in  trust. 

Although  the  cestui  que  use  was  generally  in  possession  of  the 
lands,  yet  he  was  considered  by  the  courts  of  law  as  tenant  at  suf- 
ferance. When  the  court  of  chancery  first  assumed  a  jurisdiction  in 
cases  of  uses,  it  went  no  further  than  to  compel  payment  of  the 
rents  and  profits  to  the  cestui  que  use.  In  process  of  time  it  went 
a  step  further ;  and  established  the  rule  that  the  cestui  que  use  had 
a  right  to  call  on  the  feoffees  to  uses  for  a  conveyance  of  the  legal 
estate  to  himself,  or  to  any  other  person  whom  he  chose  to  appoint ; 
and  also  to  defend  the  title  to  the  land.  The  legal  estate  was  vested 
in  the  feoffee  to  uses,  who  performed  the  feudal  services  ;  who  was 
deemed  the  tenant  of  the  fee,  which  was  liable  to  his  incumbrance. 

The  right  in  conscience  and  equity  to  the  rents  and  profits  of  the 
land,  was'not  issuing  out  of  the  land,  but  was  collateral  thereto,  and 
only  annexed  in  privity  to  a  particular  estate  in  the  land.  It  was 
created  by  a  confidence  in  the  original  feoffee,  and  continued  to  be 
annexed  to  the  same  estate,  as  long  as  that  confidence  subsisted  and 
the  estate  of  the  feoffee  remained  unaltered.  So  that  to  the  execu- 
tion of  the  use  two  things  were  necessary,  namely,  confidence  in  the 
person  Vi-^di  privity  of  estate.     {Crime's  Dig.  tit.  11,  Use,  ch.  1.) 

All  private  persons  who  were  capable  of  taking  lands  by  feoff- 
ment might  be  seised  to  a  use,  and  were  compellable  in  chancery  to 


230  USES  AND  TRUSTS. 

execute  it.  All  corporeal  hereditaments  and  such  incorporeal  here- 
ditaments as  were  in  esse,  as  rents  and  the  like,  might  be  conveyed 
to  a  use.  But  it  could  not,  like  a  feoffment,  be  created  without  a 
sufficient  consideration.  It  was  not  an  object  of  tenure.  It  was 
not  forfeitable  for  the  treason  of  the  cestui  que  use;  nor  extendible 
for  his  debts.  It  was  neither  subject  to  dower  or  curtesy.  It  might 
be  transferred  by  one  to  another  by  any  species  of  deed  or  writing. 
A  use  might  be  declared  to  a  person  who  was  not  a  party  to  the 
deed  by  which  it  was  raised,  contrary  to  the  rules  of  the  common 
law,  which  allowed  no  one  to  take  under  a  deed  unless  he  was  a  party 
to  it.  The  cestui  que  use  in  possession  could  alien  the  lands,  and 
none  of  the  technical  words  required  in  other  conveyances  were  in- 
dispensable. He  could  create  a  fee  simple  without  the  word  heirs. 
It  could  be  created  to  take  effect  in  futuro.  A  power  of  revocation 
of  the  use  might  be  annexed  to  the  instrument  by  which  it  was  cre- 
ated. It  might  be  so  limited  as  to  change  from  one  person  to  an- 
other, upon  the  happening  of  a  future  event.  It  was  devisable  and 
descendible  in  the  same  manner  as  legal  estates.  {Cruise's  Dig.  su- 
jpra.     Crabbe's  Law  of  Real  Proj^ertij,  1065  et  seq.) 

The  inconvenience  which  was  found  to  arise  from  uses,  after  other 
ineffectual  efforts  to  remove  them,  led  to  the  enactment  of  the  27th 
Hen.  8,  ch.  10,  commonly  called  the  statute  of  uses,  the  object  of 
which  was  entirely  to  abolish  uses  by  destroying  the  estate  of  the 
feoffees  to  uses,  and  transferring  it  from  them  to  the  cestui  que  use, 
whereby  the  use  would  be  turned  into  a  legal  estate.  The  conse- 
quence of  which  would  be  the  cestui  que  iise  would  become  the  com- 
plete owner  of  the  estate  as  well  in  law  as  in  equity.  This  statute, 
frequently  spoken  of  as  the  statute  for  transferring  uses  into  pos- 
session, was  re-enacted  in  this  state  at  an  early  period,  and  continued 
in  force  until  1830.     {Act  of  Feb.  20,  1787,  1  R.  L.  72.) 

There  were  three  things  necessary  to  the  execution  of  a  use  under 
the  statute :  1.  A  person  seised  to  the  use  of  some  other  person ; 
2.  A  cestui  que  use  in  esse;  and  3.  A  use  in  esse  in  possession,  re- 
mainder or  reversion.     {Ghudleigh's  case,  1  Co.  126  a,  and  notes.) 

The  object  of  the  legislature  was  entirely  defeated  by  the  narrow 
construction  of  the  statute  by  the  common  law  judges.  The  statute 
declared  in  substance  that  whenever  any  person  is  seised  to  the  use 
of  another,  the  person  so  entitled  to  the  use,  should  also  be  entitled 
to  the  possession  and  legal  estate.  The  judges  decided  according  to 
*he  letter,  overlooking  the  spirit  of  the  law,  and  held  that  where 


USES  AND  TRUSTS.  231 

successive  uses  are  contained  in  a  conveyance,  it  is  the  first  only, 
which  in  technical  language  is  executed  by  the  statute.  Thus  a 
grant  to  A.  to  the  use  of  B.  to  the  use  of  C.  was  held  to  vest  the 
legal  estate  by  force  of  the  statute  in  B.,  while  C.  retained  the  ben- 
eficial ownership,  in  the  same  manner  as  if  the  statute  had  never 
been  passed.  In  such  cases,  as  was  said  by  the  revisers  in  their  note 
to  the  statute  which  they  proposed,  the  whole  efiect  of  the  law  was 
to  change,  not  the  estate  but  the  trustee.  Though  the  statute,  un- 
der the  construction  given  to  it,  did  not  accomplish  all  that  was  de- 
sired, it  effected  important  and  durable  consequences  in  the  law  of 
real  property.  The  statute  did  not  abolish  existing  uses,  nor  prohibit 
the  conveyance  to  uses  in  future.  It  only  declared  that  both  exist- 
ing and  future  uses,  as  they  arose,  should  become  legal  estates,  and 
the  effects  were,  among  other  things,  to  introduce  new  forms  of  con- 
veyances, by  which  the  title  and  possession  of  lands  were  transferred 
without  livery  of  seisin,  which  at  common  law  was  indispensable,  and 
new  modifications  of  property,  which  the  increasing  wants  of  society 
demanded,  but  which  the  genius  of  the  feudal  system  forbade.  [See 
Notes  of  Revisers,  3  R.  S.  582,  2d  eel) 

The  construction  given  by  the  courts  of  the  common  law  to  the 
statute  of  uses  gave  rise  to  the  whole  doctrine  of  trusts.  The  second 
use,  which  the  courts  held  was  not  executed  by  the  statute,  was 
treated  by  courts  of  equity  as  a  trust,  and  enforced  by  them  as  such. 
A  trust,  therefore,  is  merely  what  a  use  was  before  the  statute  of 
uses.  It  is  an  interest  resting  in  conscience  and  equity,  and  the  same 
rules  apply  to  trusts  in  courts  of  equity  which  were  formerly  applied 
to  uses.  (Jackson  v.  Fleet,  14  Wend.  180,  jjer  Nelson,  J.  Fisher 
V.  Fields,  10  JoJm.  495-506.) 

It  is  needless  to  go  into  an  examination  of  the  doctrine  of  uses 
under  the  act  of  Henry  8,  re-enacted  here  in  1787,  any  further  than 
will  be  necessary  to  explain  the  existing  state  of  the  law.  It  is  sup- 
posed that  the  legislature,  in  1830,  intended  to  accomplish  what  the 
British  parliament  failed  to  do  in  the  reign  of  Henry  8,  namely,  to 
execute  the  last  use ;  or  in  other  words,  they  intended  the  entire 
abolition  of  uses,  while  they  retained  and  improved,  by  new  provis- 
ions, all  the  benefits  which  ever  flowed  from  the  system ;  such,  for 
example,  as  relate  to  the  simplicity  of  the  conveyances  to  which  the 
doctrine  of  uses  gave  rise,  and  the  better  mode  of  alienation  of  prop- 
erty than  formerly  prevailed. 


232  USES  AND  TRUSTS. 

The  legislature  retained  trusts  in  a  modified  form,  with  various 
changes  which  it  will  be  necessary  to  notice. 

While  the  statute,  already  referred  to,  abolished  uses  and  trusts, 
except  as  authorized  and  modified  by  it,  it  very  properly  declared 
that  every  estate  then  held  as  an  use,  executed  under  any  former 
statute  of  the  state,  should  be  confirmed  as  a  legal  estate.  (1  R.  S. 
15,  §46.) 

By  the  47th  section  it  is  enacted  that  every  person  who,  by  virtue 
of  any  grant,  assignment  or  devise,  now  is  or  hereafter  shall  be  enti- 
tled to  the  actual  possession  of  lands,  and  the  receipt  of  the  rents 
and  profits  thereof,  in  law  or  in  equity,  shall  be  deemed  to  have  a 
legal  estate  therein,  of  the  same  quality  and  duration,  and  subject  to 
the  same  conditions  as  his  beneficial  interest.  Although  a  subse- 
quent section  (§  49)  requires  that  every  disposition  of  lands,  whether 
by  deed  or  devise,  thereafter  made,  shall  be  directly  to  the  person  in 
whom  the  right  to  the  possession  and  profits  shall  be  intended  to  be 
invested,  and  not  to  any  other  to  the  use  of  or  in  trust  for  such  per- 
son ;  and  if  made  to  one  or  more  persons  to  the  use  of,  or  in  trust 
for  another,  no  estate  or  interest,  legal  or  equitable,  shall  vest  in  the 
trustee  ;  yet  it  has  been  held  by  the  court  of  appeals,  that  in  such  a 
case,  where  the  conveyance  is  made  in  terms  to  a  trustee,  who  at  the 
time  of  the  conveyance,  executed  to  the  grantor  a  mortgage  of  the 
premises  conveyed,  to  secure  a  part  of  the  purchase  money,  that  the 
person  to  whose  use  the  conveyance  was  made  took  the  legal  and 
equitable  title  subject  to  the  lien  of  the  mortgage.  The  deed  and 
mortgage  are,  in  such  a  case,  to  be  construed  together,  as  though 
both  were  incorporated  in  the  same  instrument.  {Raivson  v.  Lamp- 
man^  1  Selden,  452.) 

The  provisions  of  the  revised  statutes  transmuting  certain  trusts 
into  legal  estates  in  the  beneficiaries,  as  is  done  by  §  47  above,  ap- 
ply only  to  express  formal  trusts,  and  have  no  application  to  con- 
structive trusts,  or  such  as  are  not  expressly  declared  to  be  within 
the  statute  of  frauds.  The  latter  fall  within  the  class  of  trusts  of 
which  courts  of  equity  had  the  exclusive  cognizance.  (Johnson  v. 
Fleet,  14  Wend.  181.  1  Mad.  Ch.  Pr.  446.)  Where  a  party  is  con- 
verted into  a  trustee  for  the  purpose  of  the  remedy,  as  in  the  case 
of  a  purchaser  of  the  trust  property  with  notice,  he  is  made  liable  on 
the  ground  of  fraud,  and  can  be  reached  only  by  an  equitable  action. 

In  all  cases  of  mere  passive  trusts  the  revised  statutes  have  vested 
the  legal  estate  in  the  lands  in  the  person  or  persons  entitled  to  the 


TRUSTS.  233 

actual  possession  and  to  the  whole  beneficial  interest  in  the  lands 
under  the  trust.  That  was  the  obvious  design  of  the  47th  section, 
just  referred  to.     {Cuslmey  v,  Henry,  4  Faige,  352.) 

This  is  the  same,  whether  the  attempt  to  create  the  trust  be  by 
will  or  by  grant.  In  Knight  v.  Weatherwax,  (7  Paige,  182,)  the 
testatrix  devised  certain  lands  to  her  daughters  and  their  respective 
heirs,  subject  to  the  payment  of  certain  sums  of  money  for  debts  and 
legacies ;  and  further  directed  that  the  lands  should  remain  in  the 
hands  of  her  eiecutors  for  the  benefit  of  her  daughters,  during  their 
respective  lives,  and  then  the  remainder  to  be  given  up  to  their 
heirs  ;  and  made  the  three  daughters  her  residuary  devisees  and  leg- 
atees ;  it  was  held  that  the  executors  took  no  estate  in  the  premises 
under  the  will ;  that  estates  for  life  were  vested  immediately  in  the 
three  daughters,  as  tenants  in  common,  subject  to  the  payment  of 
the  debts  and  legacies,  with  a  remainder  in  fee  to  such  persons  as 
should  be  the  heirs  of  the  several  daughters  at  the  time  of  their  re- 
spective deaths.  In  this  case,  by  the  law  as  it  stood  before  the  re- 
vised statutes,  i^e  daughters,  according  to  the  rule  in  Shelley's  case, 
would  have  taken  an  absolute  estate  in  fee  as  tenants  in  common. 
But  under  the  existing  law,  since  the  abrogation  of  that  rule  by  the 
revised  statutes,  the  limitation  over  of  the  remainders  in  fee,  to  the 
heirs  of  the  daughters,  is  valid  and  vests  such  remainders  in  those 
who  may  be  their  heirs  at  the  time  of  their  respective  deaths  as 
purchasers.  (1  R.  S.  325,  §  28.  Knight  v.  Weatherwax,  supra, 
page  185.) 

In  the  case  of  Roxie  v.  Eoxie,  (5  Paige,  187,)  the  testator  had 
devised  his  residuary  estate  to  be  equally  divided  among  the  children 
of  his  two  brothers  and  his  sister,  when  they  should  severally  become 
of  age  ;  the  question  was  whether  the  children  of  the  brothers  and 
sister  in  esse  at  the  death  of  the  testator,  took  immediate  vested  es- 
tates in  possession,  as  tenants  in  common,  or  whether  they  took 
mere  contingent  interests  by  way  of  executory  devise,  in  the  residu- 
ary estate ;  depending  upon  the  contingency  of  their  arriving  at  the 
age  of  twenty-one  respectively  ;  and  that  in  the  mean  tim«  the  legal 
estate  descended  to  the  heir  at  law  of  the  testator.  The  chancellor 
held  that  the  infant  devisees  took  a  vested  estate,  which,  upon  the 
death  of  the  devisee  under  age,  would  have  descended  to  his  own 
children,  or  heirs  at  law,  and  not  to  the  heirs  of  the  testator.  The 
estate,  he  observed,  was  not  given  to  them,  if  they  arrive  at  the  age 
of  twenty-one,  but  it  was  to  be  divided  among  them  when  they  re- 


234  RESULTING  TRUSTS. 

spectively  attain  the  age  of  twenty-one.  He  observed  that  where, 
from  the  will  itself,  it  is  evident  that  the  testator  meant  that  the 
heir  at  law,  or  any  other  person,  should  take  the  legal  estate  for  the 
benefit  of  the  real  devisee,  the  court  would  consider  the  estate  as  de- 
vised in  trust,  although  no  formal  words  of  devise  to  the  trustee  are 
used.  But  when  it  is  clear  that  a  person  in  esse  and  capable  of 
taking  the  legal  estate,  at  the  time  of  making  the  will,  was  intended 
to  have  the  whole  beneficial  interest  in  the  estate  during  his  minor- 
ity, as  well  as  afterwards,  and  there  are  no  words  in  the  will  indi- 
cating an  intention  to  give  the  legal  estate  in  trust  to  another  person 
for  his  use,  he  could  see  no  good  reason  for  giving  the  legal  estate  to 
the  heir  at  law,  as  the  trustee  for  the  infant,  instead  of  giving  it  to 
the  infant  himself,  to  be  taken  care  of  in  the  mean  time  by  his  legal 
guardian.  The  case  was  decided,  in  truth,  upon  the  ground  that  by 
the  47th  section  of  the  act  the  devisees  took  a  legal  estate  in  the 
knd  of  the  same  quality  and  duration  as  their  beneficial  interest  in 
the  property  which  the  testator  intended  to  give  them  by  his  will. 

The  sections  of  the  statute  we  have  been  considering  were  not  in- 
tended to  extend  to  trusts  arising  or  resulting  by  implication  of  law, 
nor  to  prevent  or  affect  the  creation  of  such  express  trusts  as  are 
thereafter  authorized  and  defined,  and  which  we  shall  soon  proceed 
to  examine.     (1  B.  S.  728,  §  50.) 

The  doctrine  of  resulting  trusts  was  well  understood  before  the 
revised  statutes.  It  occurred  when  a  person  purchased  land  with 
the  money  of  another,  and  took  the  deed  in  his  own  name.  In  such 
a  case  a  trust  resulted  in  favor  of  the  party  to  whom  the  money  be- 
longed. The  trust  was  allowed  to  be  proved  by  parol,  and  the  evi- 
dence was  admissible,  not  only  against  the  face  of  the  deed  itself, 
but  in  opposition  to  the  answer  of  the  trustee  denying  the  trust.  If 
part  only  of  the  consideration  was  paid,  the  trust  resulted  pro  tanto. 
(Boyd  V.  3IcLean,  1  John.  Ch.  582.  Botsford  v.  Burr,  2  id.  405. 
Livingston  v.  Livingston,  Id.  537.  Mann  v.  Mann,  1  John.  Ch. 
23.  Jackson  v.  Sternberg,  1  John.  Cases,  153.  Jackson  v.  Mots- 
dorf,  11  John.  91.  Same  v.  Mills,  13  id.  463.  Same  v.  J/orse,  16 
id.  197.  Reid  v.  Fitch,  11  Barb.  399.  Lounsbury  v.  Purdy,  16 
id.  376.)  The  trust  might  be  rebutted  as  well  as  proved  by  parol. 
(Jackson  v.  Feller,  2  Wend.  465.)  And  the  estate  of  the  cestui  que 
trust  could  be  sold  under  an  execution  issued  upon  a  judgment 
against  him.     {Foote  v.  Colvin,  3  John.  216.) 


RESULTING  TRUSTS.  235 

The  revised  statutes  have,  to  a  considerable  extent,  changed  the 
rule  in  these  respects.  The  51st  section  forbids  that  a  use  or  trust 
shall  result  in  favor  of  the  person  by  whom  the  payment  shall  be 
made,  in  cases  where  a  grant  for  a  valuable  consideration  shall  be 
made  to  one  person,  and  the  consideration  thereof  shall  be  paid  by 
another  :  but  it  enacts  that  the  title  shall  vest  in  the  person  named 
as  the  alienee  in  such  conveyance,  subject  only  to  the  provisions — 
1st.  That  such  conveyance  shall  be  presumed  fraudulent  as  against  the 
creditors,  at  that  time,  of  the  person  paying  the  consideration  ;  and 
2d.  When  a  fraudulent  intent  is  not  disproved,  a  trust  shall  result 
in  favor  of  such  creditors,  to  the  extent  that  may  be  necessary  to 
satisfy  their  just  demands.  (Id.  §  52.)  '  3d.  That  the  provisions  of 
the  51st  section  shall  not  extend  to  cases  where  the  alienee  named 
in  the  conveyance,  shall  have  taken  the  same  as  an  absolute  convey- 
ance in  his  own  name,  without  the  consent  or  knowledge  of  the  per- 
son paying  the  consideration  :  or  4th.  When  such  alienee,  in  viola- 
tion of  some  trust,  shall  have  purchased  the  lands  so  conveyed,  with 
money  belonging  to  another  person.  (§  53.)  Nor  5th,  shall  it 
be  alleged  or  established  to  defeat  or  prejudice  the  title  of  a  pur- 
chaser, for  a  valuable  consideration,  and  without  notice  of  such 
trust.     (§  54.) 

The  foregoing  provisions  have  wrought  out  extensive  changes  in 
the  law,  with  respect  to  resulting  trusts,  some  of  which  we  will 
mention. 

1.  The  revised  statutes  have  put  an  end  to  resulting  trusts  arising 
from  the  voluntary  payment  of  the  purchase  money  by  one  person, 
and  taking  the  conveyance  in  the  name  of  another,  so  far  as  relates 
to  any  trust  in  favor  of  the  former.  [Bodine  v.  Edwaixls,  10  Paige, 
504.     Norton  v.  Stone,  8  id.  222.) 

2.  Under  the  present  statute  we  have  seen,  that  no  use  or  trust 
results  in  favor  of  him. who  paid  the  money,  and  that  the  title  vests 
in  the  person  named  as  alienee  in  the  deed.  But  the  conveyance  is 
presumed  to  be  fraudulent  as  against  the  creditors,  at  that  time,  of 
the  person  paying  the  consideration  ;  and  if  a  fraudulent  intent  is 
not  disproved,  a  trust  results  in  favor  of  those  creditors,  to  the  ex- 
tent which  may  be  necessary  to  satisfy  their  just  demands.  It  has 
been  made  a  question  whether  the  creditors  can  sell  the  land  on 
execution.  The  supreme  court,  in  Wait  y.  Day,  (4  Den.  439,) 
thought  they  could  so  sell  it.  The  chancellor,  m  Breiosterv.  Poiver, 
(10  Paige,  563,)  thought  otherwise.    He  was  of  opinion  that  the  cred- 


236  EXPRESS  TRUSTS. 

itor  could  only  reacli  the  interest  of  his  debtor  by  bill  in  equity  after 
exhausting  his  remedy  at  law  by  issuing  an  execution,  and  upon  a 
return  thereof  unsatisfied  obtaining  an  order  to  have  the  defendant's 
interest  sold  and  applied  to  the  satisfaction  of  the  judgment.  He 
thought  the  interest  of  the  party  was  not  bound  by  the  docketing  of 
any  judgment  or  decree.  '  This  doctrine  of  the  chancellor  was  ap- 
proved by  the  court  of  appeals,  in  Garfield  v.  Hatmaker,  (15  N.  Y. 
Hep.  476,)  and  that  of  the  supreme  court,  in  Wait  v.  Do,y,  so  far  as 
it  holds  to  the  contrary,  overruled. 

3.  The  statute  by  its  own  terms,  creates  the  trust  only  in  favor 
of  those  who  were  creditors  at  the  time  of  paying  the  consideration 
of  such  purchase,  and  it  would  seem  that  subequent  creditors  can- 
not avail  themselves  of  it.  {Garfield  v.  Hatmaker,  sujjra.  Brewster 
V.  Power,  10  Paige,  562.) 

The  rule  is  otherwise  with  respect  to  fraudulent  sales,  not  within 
the  51st  and  52d  sections.  In  those  cases,  subsequent  as  well  as  ex- 
isting creditors  may  impeach  them  for  fraud.  {Mead  v.  Gregg,  12 
Barh.  653.     Beade  v,  Livingston,  3  John  Cli.  481.) 

To  constitute  such  a  resulting  trust  as  may  be  establishedby  parol 
proof,  it  is  necessary  that  the  consideration  money  for  the  purchase 
should  belong  to  the  cestui  que  trust,  or  should  be  advanced  as  a 
loan  or  gift  to  him.  {Getman  v.  Getman,  1  Barh.  Ch.  499.)  Such 
trust  must  arise,  if  at  all,  at  the  time  of  the  conveyance.  It  cannot 
arise  from  a  subsequent  application  of  the  funds  of  a  third  person  to 
pay  the  purchase  money,  or  to  the  improvement  of  the  property. 
(Eager s  v.  Murray,  3  Paige,  390.)  Nor  can  it  arise  where  there  is  an 
express  trust,  declared  by  the  parties,  and  evidenced  by  a  written 
declaration.  {Leggett  y.  Duhois,  5  Paige,  114.)  Nor  in  opposition 
to  the  express  terms  of  the  conveyance  ;  as  when,  for  example,  it  is 
absolute  and  with  warranty.  {Squire  v.  Handy,  1  Paige,  494. 
Eathhun  v.  Bathhun,  6  Barb.  98.) 

While  it  was  the  policy  of  the  revised  statutes,  as  has  been  seen, 
to  vest  the  estate  at  once  in  the  party  beneficially  interested,  there 
were  obviously  some  cases  of  express  trust,  proper  to  be  retained, 
and  which  could  not  be  made  effectual  unless  the  legal  estate  should 
pass  to  the  trustees.  An  assignment  for  the  benefit  of  creditors 
would  in  general  be  defeated,  if  the  title  were  left  in  the  debtor; 
and  a  trust  to  secure  the  rents  and  profits  of  lands,  and  apply  them 
to  the  education  of  a  minor,  or  the  separate  use  of  a  married  woman, 


EXPRESS  TRUSTS.  237 

or  the  support  of  persons  laboring  under  disabilities,  requires  that 
the  legal  estate  should  be  vested  in  the  trustees.  The  legislature, 
therefore,  accordingly  provided  that  express  trusts  may  be  created, 
1,  to  sell  lands  for  the  benefit  of  creditors  ;  2,  to  sell,  mortgage  or 
lease  lands,  for  the  benefit  of  legatees,  or  for  the  purpose  of  satisfy- 
ing any  charge  thereon ;  3,  to  secure  the  rents  and  profits  of  lands, 
and  apply  them  to  the  use  of  any  person  during  the  life  of  such 
person,  or  for  any  shorter  term,  subject  to  the  rules  prescribed  by 
law.     (1  R.  S.  728,  §  55,  as  amended  in  1830,  ch.  320,  §  10.) 

As  a  certain  class  of  express  trusts  was  thus  retained,  it  may  be 
proper  to  inquire  by  what  words  such  trust  may  be  raised.  Since 
a  trust  is  now,  what  a  use  was  formerly,  it  is  believed  that  words 
by  which  a  use  could  formerly  be  raised,  or  a  trust  created,  will  be 
sufficient  for  that  purpose.  The  statute  does  not  prescribe  any  par- 
ticular form  of  words,  or  mode  of  expression  ;  and  therefore  leaves 
us  to  gather  the  intent  from  the  whole  scope  of  the  instrument. 
In  Fisher  v.  Fields,  (10  John.  495,)  it  was  said  by  the  judge  deliver- 
ing the  prevailing  opinion  of  the  court,  that  no  particular  form  of. 
words  is  necessary  to  create  a  trust,  the  intent  only  being  regarded 
by  courts  of  equity.  The  words,  "use,"  "trust,"  "confidence," 
were  used  in  the  former  statute,  and  therefore  if  lands  were  conveyed 
to  A.  and  his  heirs,  in  trust  for  B.  and  his  heirs,  or  in  "  confidence" 
that  he  and  they  shall  take  the  profits,  the  legal  estate  was  vested 
in  B.  by  virtue  of  the  statute.  But  other  language,  expressive  of 
this  intent,  was  equally  efficacious.  The  words  "to  permit  a  party 
to  take  the  rents  and  profits,"  &c.  have  been  held  to  create  a  valid 
trust.     (Right  v.  Smith,  12  East,  455.) 

A  trust  estate  is  defined  by  Mr.  Cruise,  (Dig.  tit.  12,  ch.  1,)  to  be 
a  right  in  equity  to  take  the  rents  and  profits  of  land,  whereof  the 
legal  estate  is  vested  in  some  other  person ;  to  compel  the  person 
thus  seised  of  the  legal  estate,  who  is  called  the  trustee,  to  execute 
such  conveyances  of  the  land  as  the  person  entitled  to  the  profits, 
who  is  called  the  cestui  que  trust,  shall  direct ;  and  to  defend  the 
title  to  the  land.  This  is  sufficient  as  a  definition  of  a  trust  under 
'  the  revised  statutes,  with  the  qualification  that  when  the  trust  is  for 
the  benefit  of  persons  laboring  under  disability,  as  infants,  lunatics, 
&c.  no  direction  can  be  made  by  the  cestui  que  trust,  except  through 
the  medium  of  a  proper  tribunal,  having  equity  powers. 


238  EXPRESS  TRUSTS. 

Although  the  revisers  thought,  in  1830,  that  the  55th  section 
ahove  quoted  comprised  all  the  cases  in  which  it  would  be  necessary 
that  the  title  and  possession  should  vest  in  the  trustees,  it  was  found, 
at  an  early  day,  that  there  were  numerous  cases,  where  a  literal 
construction  of  the  act  would  defeat  the  intention  of  parties,  and 
work  out  great  injustice  to  the  public.  It  became  necessary,  there- 
fore, by  several  enactments,  in  different  successive  years,  to  enlarge 
the  power  of  trustees,  and  to  extend  the  doctrine  of  trusts  to  cases 
not  provided  for  by  the  revised  statutes.  Thus,  by  the  act  of  May, 
1840,  it  was  enacted  that  real  and  personal  property  might  be  granted 
and  conveyed  to  any  incorporated  college,  or  other  literary  incorpo- 
rated institution  in  this  state,  to  be  held  in  trust  for  either  of  the 
following  purposes:  1.  To  establish  and  maintain  an  observatory; 
2.  To  found  and  maintain  professorships  and  scholarships ;  3.  To 
provide  and  keep  in  repair  a  place  for  the  burial  of  the  dead ;  4.  Or 
for  any  other  specific  purposes  comprehended  in  the  general  objects 
authorized  by  their  respective  charters.  These  trusts  may  be  cre- 
ated, subject  to  such  conditions  and  visitations  as  may  be  prescribed 
by  the  grantor  or  donor,  and  agreed  to  by  said  trustees,  and  all  prop- 
erty which  shall  hereafter  be  granted  to  any  incorporated  college,  or 
other  literary  incorporated  institution,  in  trust  for  either  of  the  afore- 
said purposes,  may  be  held  by  such  college  or  institution,  upon  such 
trusts,  and  subject  to  such  conditions  and  visitations  as  may  be  pre- 
scribed and  agreed  to  as  aforesaid.  {Laws  of  1840,  ch.  318,  §  1. 
3  B.  S.  16,  5th  ed.) 

By  the  2d  section  of  the  same  statute,  real  and  personal  property 
may  be  granted  to  the  corporation  of  any  city  or  village  of  this  state, 
to  be  held  in  trust  for  any  purpose  of  education,  or  the  diffusion  of 
knowledge,  or  for  the  relief  of  distress,  or  for  parks,  gardens,  or  other 
ornamental  grounds,  or  grounds  for  the  purpose  of  military  parades 
and  exercise,  or  health,  or  recreation,  within  or  near  such  incorpo- 
rated city  or  village,  upon  such  condition  as  may  be  prescribed  by 
the  grantor  or  donor,  and  agreed  to  by  such  corporation ;  and  all 
real  estate  so  granted  or  conveyed  to  such  corporation,  may  be  held 
by  the  same,  subject  to  such  conditions  as  may  be  prescribed  and 
agreed  to  as  aforesaid. 

By  the  3d  section  of  the  same  act,  real  and  personal  estate  may 
be  granted  to  superintendents  of  common  schools  of  any  town,  and 
to  trustees  of  any  school  district,  in  trust  for  the  benefit  of  the  com- 
mon schools  of  such  town,  or  for  the  benefit  of  the  schools  of  such 


EXPRESS  TRUSTS— RECEIVERS.  239 

district.  These  trusts  were,  by  the  4th  section  of  the  same  statute, 
allowed  to  continue  for  such  time  as  may  be  necessary  to  accomplish 
the  purposes  for  which  they  may  be  created.  {L.  of  1840,  ch.  318, 
§  4.     3  i?.  S.  16,  17,  5th  ed.) 

The  foregoing  statute  applied  only  in  terms  to  property  "  granted 
and  conveyed"  thus  leaving  it  doubtful  whether  the  same  trusts 
could  be  upheld  if  created  by  a  last  will  and  testament.  This  doubt 
was  removed  the  following  year,  by  the  act  of  May  26,  which  declared 
that  devises  and  bequests  of  real  and  personal  property  in  trust,  for 
any  of  the  purposes  for  which  such  trusts  are  authorized  under  the 
act  authorizing  certain  trusts,  passed  May  14,  1840,  the  act  above 
mentioned,  and  to  such  trustees  as  are  therein  authorized,  shall  be 
valid  in  like  manner  as  if  such  property  had  been  granted  and  con- 
veyed according  to  the  provisions  of  the  aforesaid  act.  (3  B.  S.  17, 
5th  ed.) 

■-By  the  act  of  1846,  the  income  arising  from  any  real  or  personal 
property  granted  or  conveyed,  decreed  or  bequeathed  in  trust  to  any 
incorporated  literary  institution,  for  any  of  the  purposes  specified  in 
the  act  authorizing  certain  trusts,  passed  May  14,  1840,  or  for  the 
purpose  of  providing  for  the  support  of  any  teacher  in  a  grammar 
school,  or  institute,  may  be  permitted  to  accumulate  till  the  same 
shall  amount  to  a  sum  sufficient,  in  the  opinion  of  the  regents  of  the 
university,  to  carry  into  effect  either  of  the  purposes  aforesaid,  de- 
signated in  said  trust.     (3  R.  S.  17,  5th  ed.) 

In  1855,  the  act  of  1840  was  further  amended  so  as  to  provide,  in 
case  of  the  diminution  of  the  trust  fund,  by  making  it  good  by  the 
accumulation  of  interest  and  income ;  but  in  no  case  is  the  accumu- 
lation allowed  to  increase  the  trust  fund  bej^ond  the  true  amount  or 
value  thereof,  actually  received  by  the  trustees,  to  be  estimated  after 
the  deduction  of  all  liens  and  incumbi-ances  on  such  trust  fund,  and 
of  all  expenses  incurred  or  paid  by  the  trustees  in  the  collection  or 
obtaining  the  possession  of  the  same.     (3  B.  S.  17,  5th  ed.) 

Some  doubts  had  been  entertained  as  to  the  power  of  a  receiver 
appointed  by  order  of  the  court  of  chancery,  and  which  power  is  now 
vested  in  the  supreme  court.  To  remove  these  doubts,  and  to  pro- 
vide for  a  few  other  cases,  it  was  enacted  in  1845,  that  any  receiver 
appointed  by  virtue  of  an  order  or  decree  of  the  court  of  chancery, 
might  take  and  hold  real  estate,  upon  such  trusts  and  for  such  pur- 
poses as  the  court  might  direct,  subject  to  its  further  order.  (L.  of 
1845,  ch.  112,  p.  90.)  Under  this  law,  the  chancellor  held,  in  Wilson 


240  TRUSTS  FOR  RELIGIOUS  SOCIETIES. 

V.  Wilson,  (1  Barh.  Ch.  592,)  decided  in  1846,  that  the  act  was  not 
broad  enough  to  have  the  effect  to  transfer  the  title  of  real  estate  to 
a  receiver,  by  mere  order  of  the  court,  without  an  actual  conveyance 
from  the  party  to  the  suit  in  which  the  legal  title  was  vested.  But 
the  court  of  appeals,  .in  1853,  in  the  case  of  Porter  v.  Williams,  (5 
Selden,  142,)  held,  that  after  the  adoption  of  the  code  of  procedure, 
the  language  of  which  is  broader  than  the  act  of  1845,  {supra,)  the 
title  of  the  real  as  well  as  personal  estate  is  vested  in  the  receiver, 
by  virtue  of  the  order  of  the  court,  and  that  no  conveyance  of  the 
debtor  is  necessary.  The  case  of  Chautauque  Bank  v.  Bisley,  (19 
i^.  Y.  Bep.  370,)  though  decided  in  1853,  arose  under  the  law  prior 
to  the  adoption  of  the  code. 

In  addition  to  the  foregoing,  there  are  several  acts  upholding 
trusts,  to  a  certain  extent,  in  favor  of  the  United  Society  of  the  peo- 
ple commonly  called  Shakers,  and  in  favor  of  the  religious  society  of 
Friends,  and  in  favor  of  the  community  of  True  Inspiration.  {See 
these  acts  collected,  3  B.  S.  18,  19,  5th  ed.) 

It  is  believed  that  the  revised  statutes  do  not  affect  the  trusts  au- 
thorized by  the  act  to  provide  for  the  incorporation  of  religious  soci- 
eties originally  passed  in  1784,  and  revised  in  1813.  {See  same  and 
the  amendatory  acts,  3  B.  S.  292  et  seq.) 

Most  of  the  religious  denominations  in  this  state  availed  them- 
selves of  the  general  law,  or  applied  to  the  legislature  for  special  acts 
of  incorporation  ;  and  the  greatest  part  of  the  estate,  real  and  per- 
sonal, belonging  to  the  different  religious  societies  in  this  state,  is 
held  in  trust  by  such  corporations.  The  Roman  Catholic  denomi- 
nation is  an  exception  to  this  remark.  They  claimed  to  have  the 
property  belonging  to  their  churches  vested  in  their  bishops  in  trust 
for  the  use  of  their  religious  societies.  This  claim  was  strongly 
resisted  in  some  quarters,  and  strenuously  urged  in  others.  The 
controversy  led  to  the  act  of  1855,  commonly  known  as  the  church 
property  law.     (i.  of  1855,  ch.  230.    -3  B.  S.  19,  5th  ed.) 

Although  the  revised  statutes  do  not  authorize  trusts  of  that  kind, 
it  was  deemed  expedient  to  forbid  the  creation  of  them  in  explicit 
terms.  It  was,  moreover,  believed  to  be  for  the  interest  of  the  pub- 
lic, that  the  tenure  by  which  property  was  held  by  the  various  chris- 
tian denominations  for  religious  and  pious  uses,  should  be  substan- 
tially the  same.  The  statute  accordingly  provides  that  no  grant, 
conveyance,  devise  or  lease  of  real  or  personal  estate,  nor  any  trust 


EELIGIOUS  CORPORATIONS.  '  241 

of  such  property  for  the  benefit  of  any  person  or  his  successor  in  any 
ecclesiastical  office,  shall  vest  any  estate  or  interest  in  such  person 
or  his  successor.  And  no  such  grant,  conveyance,  devise  or  lease,  to 
or  for  any  such  person,  by  the  designation  of  any  such  office,  shall 
vest  any  estate  or  interest  in  any  successor  of  such  person.  The  stat- 
ute does  not  recognize  the  validity  of  any  such  grant,  conveyance, 
devise  or  lease  heretofore  made. 

The  second  section  forbids  the  future  grant,  conveyance,  devise  or 
lease  of  any  real  estate  consecrated,  dedicated  or  appropriated,  or 
intended  to  be  consecrated,  dedicated  or  appropriated,  to  the  pur- 
pose of  religious  worship  for  the  use  of  any  congregation  or  society, 
unless  the  same  be  made  to  a  corporation  organized  according  to  the 
provisions  of  the  laws  of  this  state  under  the  act  entitled  "  An  act 
for  the  incorporation  of  religious  societies,"  and  the  acts  amending 
the  same,  or  under  the  act  entitled  "  An  act  for  the  incorporation 
of  societies  to  establish  free  churches,"  passed  April  18, 1854.  Such 
real  estate,  which  has  been  heretofore  granted,  devised  or  demised  to 
any  person  or  persons  in  any  ecclesiastical  ofiice  or  orders,  by  the 
designation  of  such  office  or  orders  or  other  use,  is  declared  to  be 
held  in  trust  for  the  benefit  of  the  congregation  or  society  using  the 
Bame,  and  unless  previously  conveyed  to  a  corporation  as  provided 
in  the  act,  shall,  upon  the  death  of  the  person  in  whom  the  legal 
title  is  vested,  vest  in  the  religious  corporation  formed  by  the  con- 
gregation or  religious  society  occupying  or  enjoying  such  real  estate, 
provided  such  corporation  shall  be  formed  under  the  laws  of  this 
state,  and  be  in  existence  at  the  time  of  the  death  of  such  person ; 
(§  33  ;)  and  in  case  no  such  corporation  shall  have  been  formed,  it 
shall  vest  in  the  people  of  this  state  in  the  same  manner  as  if  the 
person  holding  the  legal  title  had  died  intestate  and  without  heirs 
capable  of  inheriting  such  estate.  Whenever  the  title  so  vests  in 
the  people  it  is  placed  under  the  control  of  the  commissioners  of  the 
land  office,  who  are  required  to  convey  it  to  a  legal  corporation, 
when  one  shall  be  formed  by  the  society  for  whose  benefit  the  estate 
was  originally  held.  These  enactments  hold  out  strong  induce- 
ments to  religious  societies  to  cause  themselves  to  be  incorporated. 
They  are  general  in  their  nature  ;  not  aimed  at  any  one  denomina- 
tion in  particular,  but  embracing  all  who  fall  within  the  purview 
of  the  act. 

Will.— 16 


242  TRUSTS  CREATED  BY  DEVISE. 

The  revised  statutes  with  respect  to  uses  and  trusts  have  nothing 
to  do  with  personal  property.  The  whole  scope  and  object  of  the 
provisions  have  reference  only  to  real  estate,  or  its  rents  and  profits. 
{Kane  v.  6^01^^,  24  Wend.  661,  per  Cotven,  J.)  It  is  this  class  of 
trusts  which  alone  falls  within  the  scope  of  this  work.  Such  trusts 
can  be  created  only  by  an  instrument  in  writing,  duly  executed 
within  the  statute  of  frauds.  They  may  be  created  by  a  devise,  or 
by  a  grant  or  deed.  It  is  otherwise  with  respect  to  trusts  in  per- 
sonal estate.  Although  they  may  be  created  by  a  last  will  or  testa- 
ment or  other  writing,  they  may  also  arise  by  parol.  A  formal,  or 
even  a  written  agreement,  is  not  necessary  to  create  a  trust  in  money 
or  personal  estate.  Any  declaration,  however  informal,  evincing  the 
intention  with  sufficient  clearness,  will  have  that  effect.  The  doc- 
trine of  equity  is  that  admissions  or  declarations,  by  their  own  force, 
impress  the  fund  with  a  peculiar  character,  and  hence  they  are  re- 
ceivable on  the  same  grounds  as  a  precise  and  formal  agreement. 
{Day  V.  Betts,  18  N.  Y.  B.  453,  per  Comstock,  J.) 

We  have  already  seen  by  what  words  trusts  may  be  created;  and 
it  may  here  be  added  that  they  may  be  created  by  a  last  will  and 
testament,  or  by  a  deed  or  grant. 

There  is  a  distinction  between  a  trust  to  sell  created  by  deed,  and 
a  similar  trust  created  by  devise.  In  the  first  case,  it  is  essential 
that  the  trustee  should  take  the  estate,  or  the  trust  itself  m^j  be 
defeated;  but  in  the  latter,  no  such  necessity  exists.  The  instance 
before  given  of  an  assignment  for  the  benefit  of  creditors  is  a  suf- 
ficient illustration  of  the  rule.  But  the  reason  does  not  hold  good, 
where  land  is  devised  to  executors  or  other  trustees,  to  be  sold  or 
mortgaged,  when  the  trustees  are  not  also  empowered  to  receive  the 
rents  and  profits.  It  is  accordingly  enacted  that  in  such  a  case,  no 
estate  is  vested  in  the  trustees.  But  the  trust  is  valid  as  a  power, 
and  the  lands  descend  to  the  heirs,  or  pass  to  the  devisees  of  the 
testator,  subject  to  the  execution  of  the  power.  (1  B.  S.  729,  §  56.) 
The  reason  for  this  change  of  the  law  has  been  said  to  be,  to  take 
from  the  trustee  the  power  to  defeat  the  object  of  the  trust,  when 
Buch  object  can  be  as  well  accomplished  under  a  trust  power. 
{Broivn  v.  Wilber,  8  Wend.  661,  per  Nelson,  J.)  On  the  death 
of  the  testator  the  power  attaches  immediately  to  the  land,  and  no 
subsequent  disposition  can  be  made,  nor  incumbrance  created,  by 
which  its  execution  can  be  defeated.     (3  B.  S.  585,  2d  ed.  Bev. 


TRUSTS  TO  SECURE  RENTS.  243 

notes.)     There  is  a  difference  between  a  naked  authorityj  and  a 
power  coupled  with  an  interest.     {Oo.  Lit.  113,  a.) 

In  the  exigencies  of  society,  there  are  numerous  cases  in  which  it 
is  necessary  that  a  trust  should  be  created  for  the  education  and  sup- 
port, or  for  either  of  them,  in  such  a  manner  that  the  provision  can- 
not be  anticipated,  or  aliened  by  the  person  beneficially  interested. 
This  will  happen  when  a  provision  is  desired  to  be  made  for  an  im- 
provident offspring,  or  for  a  ferae  covert.  Previous  to  the  adoption 
of  the  revised  statutes  a  trustee  might  hold  the  mere  naked  legal  es- 
tate  in  real  property,  for  a  feme  covert,  while  the  whole  equitable 
interest  and  estate  therein  was  in  her,  and  subject  to  her  control. 
In  relation,  therefore,  to  such  an  estate,  she  was  considered  as  a 
feme  sole,  and  could  charge  her  equitable  interest  in  the  property 
with  any  debt  she  might  think  proper  to  contract  on  the  credit  of 
it,  which  was  not  inconsistent  with  the  trust  or  with  the  nature  of 
her  interest  in  the  premises,  and  which  was  authorized  by  the  instru- 
ment or  conveyance  creating  the  trust.  All  such  mere  formal  trusts 
are  now  abolished  ;  and  in  the  few  trusts  which  are  authorized  by  the 
revised  statutes,  the  whole  estate,  both  legal  and  equitable,  is  vested 
in  the  trustee.  The  person  for  whose  benefit  the  trust  is  created  takes 
no  estate  or  interest  in  the  lands ;  but  may  enforce  the  per- 
formance of  the  trust  in  equity,  (1  B.  S.  729,  §§  57,  60.  L'Amo- 
reux  V.  Vail  Rensselaer,  1  Barb.  Ch.  37.  Degraw  v.  Classon, 
11  Baige,  140.  Noyes  v.  Blakman,  2  Seld.  567.  Calkins  v.  Long, 
22  Barh.  97.     Darling  v.  Rogers,  22  Wend.  483.) 

The  beneficent  object  of  the  party  creating  the  trust  is  thus  pre- 
vented from  being  defeated  by  the  improvidence  or  want  of  judg- 
ment and  discretion  of  the  beneficiar)^  Still  it  is  obvious  that  the 
trust  created  to  secure  the  rents  and  profits  of  lands  where  there  is 
no  valid  discretion  for  the  accumulation,  should,  with  respect  to  the 
surplus  of  such  rents  and  profits  beyond  the  sum  necessary  for  the 
education  and  support  of  the  person  for  whose  benefit  the  trust  was 
created,  be  available  to  th^  creditors  of  such  person,  in  the  same 
manner  as  other  personal  property,  which  cannot  be  reached  by  an 
execution.  Such  provision  is  made  of  the  surplus  for  the  benefit  of 
creditors  by  the  57th  section  of  the  act.     {Degraw  v,  Classon,  supra.) 

When  a  trust  has  thus  been  created  for  the  receipt  of  the  rents 
and  profits  of  lands,  the  person  beneficially  interested  cannot  assign, 
or  in  any  manner  dispose  of  such  interest  ;  but  the  rights  and  in- 
terests of  every  person  for  whose  benefit  a  trust  for  the  payment  of  a 


244  NOTICE  OF  TRUST. 

sum  in  gross  is  created,  are  assignable.  (1  R.  S.-730,  §  63.  Hallett 
V.  Thompson,  5  Paige,  586.     Gott  v.  Cooh,  7  Paige,  521.) 

When  an  express  trust  is  created  for  any  purpose  not  enumerated 
in  the  preceding  sections,  it  is  provided  by  the  58th  section,  that  no 
estate  shall  vest  in  the  trustees  ;  but  the  trust,  if  directing  or  au- 
thorizing the  performance  of  any  act  which  may  be  lawfully  per- 
formed under  a  power,  shall  be  valid  as  a  power  in  trust,  subject  to 
the  provisions,  in  relation  to  such  powers,  contained  in  the  article 
on  powers,  of  which  we  shall  treat  in  the  next  chapter.  Whenever 
the  trust  is  valid  as  a  power,  the  lands  to  which  the  trust  relates 
remain  in,  or  descend  to  the  persons  otherwise  entitled,  subject  to 
the  execution  of  the  trust  as  a  power.  (1  B.  S.  721,  §§  58,  59. 
Germond  v.  Jones,  2  Hill,  570,  573.) 

There  are  various  provisions  in  the  chapter  on  trusts  which  are 
merely  declaratory  of  the  then  existing  laws.  Thus,  the  provision 
that  when  the  trust  shall  be  expressed  in  the  instrument  creating 
the  estate,  every  sale,  conveyance  or  other  act  of  the  trustees  in  con- 
travention of  the  trust,  shall  be  absolutely  void,  (1  B.  S.  730,  §  Q5,) 
is  no  more  than  the  familiar  principle,  that  a  party  who  derives  a 
title  under  an  instrument  in  writing,  is  chargeable  with  notice  of  its 
contents ;  and  that  no  man  can  be  protected  as  a  lonafde  pur- 
chaser, who  acts  with  a  full  knowledge  of  the  infirmities  of  his  gran- 
tor's title.  {Sanford  v.  Handy,  23  Wend.  267.  North  River  Bank 
V.  Aymar,  3  Hill,  262 ;  ap^^roved  in  Farm,  and  M.  Bank  of  Kent 
Co.  V.  Butchers  and  Drovers'  Bank,  2  Smith,  143,  notwithstanding 
its  reversal  by  the  late  court  of  errors.)  Nor  is  the  provision  that 
when  the  purposes  for  which  an  express  trust  was  created,  shall  have 
ceased,  the  estate  of  the  trustees  also  shall  cease,  introductory  of  any 
new  rule.  (1  R.  S.  730,  §  67.)  It  was  part  of  the  then  existing 
law.  {Parks  v.  Parks,  9  Paige,  107.  Legget  v.  Perkins,  2  Corn- 
stock,  297.) 

The  same  principle  applies  when  the  purchaser  has  notice  of  the 
object  of  the  trust,  although  it  be  not  named  in  the  instrument,  as 
when  it  is  plainly  expressed.  The  revised  statutes  provide  that  such 
instrument  shall  be  deemed  absolute  as  against  the  subsequent  cred- 
itors of  the  trustees,  not  having  notice  of  the  trust,  and  as  against 
purchasers  from  such  trustees,  without  notice  and  for  a  valuable 
consideration.  (1  R.  S.  730,  §  64.)  This  provision  is  only  in  affirm- 
ance of  the  then  existing  law.  {Fisher  v.  Fields,  10  John.  495. 
Murray  v.  Ballou,  1  John.  Ch.  566.  Shepherd  v.  McEvers,  4  id.  136.) 


DEATH,  OR  RESIGNATIOiT  OF  TRUSTEE.  245 

The  object  of  this  provision  is  to  prevent  seaxt  trusts,  which  have 
often  been  made  use  of  as  instruments  of  fraud. 

It  has  always  been  esteemed  to  be  unjust,  when  a  party  actually 
and  in  good  faith  pays  a  sum  of  money  to  a  trustee,  which  the  trustee 
as  such  is  authorized  to  receive,  that  he  should  be  held  responsible 
for  the  proper  application  of  such  money  according  to  the  trust. 
The  statute  recognizes  the  hardship  of  such  a  rule,  and  it  prevents 
the  right  and  title  derived  from  such  trustee,  in  consideration  of 
such  payment,  from  being  impeached  or  called  in  question,  in  con- 
sequence of  any  misapj)lication  by  the  trustee  of  the  money  so  paid. 
(1  B.  S.  730,  §  66.) 

Formerly,  upon  the  death  of  a  sole  surviving  trustee  of  an  express 
trust,  the  trust  estate  descended  to  his  heirs  at  law,  or  passed  to  his 
personal  representatives.  These  might  be  persons  unknown  to  the 
party  by  whom  the  trust  was  created,  and  entirely  unfit  for  the  office. 
The  trust  property,  moreover,  was  exposed  to  become  mingled  with 
the  individual  estate  of  the  trustee,  or  to  pass  into  the  hands  of  his 
alienee.  The  rule  itself  has  been  abolished  by  the  revised  statutes. 
(1  R.  S.  730,  §  68.)  In  such  a  case,  on  the  death  of  the  trustee, 
leaving  the  trust  unexecuted,  it  vests  in  the  supreme  court,  with  all 
the  powers  and  duties  of  the  original  trustee,  who  will  require  it  to 
be  executed  by  some  person  appointed  for  that  purpose,  under  the 
direction  of  the  court.  {Blatter  of  Van  Schoonhoven,  5  Paige,  559. 
Haioley  v.  Ross,  7  id.  103.  De  Peyster  v.  Ferris,  11  id.  13.) 
Equity  permits  no  trust  to  fail  for  the  want  of  a  trustee. 

With  regard  to  active  trusts,  authorized  by  the  55th  section  of 
the  act,  it  has  been  held  that  the  rule  is  the  same  as  at  common 
law,  that  the  trustee  takes  that  quantity  of  interest  only  which  the 
purposes  of  the  trust  require,  and  the  instrument  creating  it  permits. 
The  legal  estate  is  in  the  trustee  so  long  as  the  execution  of  the  trust 
requires  it,  and  no  longt^r,  and  then  it  vests  in  the  person  beneficially 
entitled.  {Per  Jewett,  J.  in  Nicoll  v.  Walworth,  4  Denio,  388. 
Doe  V.  Nichols,  1  Barn.  &  Cres.  336.     Doe  v  Simpson,  5  East,  162.) 

The  common  law  made  no  provision  for  the  resignation  of  a  trustee, 
without  the  consent  of  all  the  persons  interested  in  the  execution  of 
it.  {In  the  matter  of  Stevenson,  3  Paige,  420,  In  the  matter  of 
Van  Wyck,  1  Barb.  Ch.  565.)  The  revised  statutes  introduced  the 
provision-that  the  court  of  chancery,  now  the  supreme  court,  may,  upon 
the  petition  of  any  trustee,  discharge  him  from  the  trust,  under  such 


246  RESIGNATION  OF  TRUSTEE; 

regulations  as  shall  be  established  by  the  court  for  that  purpose,  and 
upon  such  terms  as  the  rights  and  iqterests  of  the  persons  interested 
in  the  execution  of  the  trust  may  require.     (1  R.  S.  730,  §  69.) 

The  court  had  power,  independently  of  the  statute,  to  remove  a 
trustee  for  good  cause  shown,  and  to  substitute  another  in  his  place. 
{The  Peo2)le  v.  Norton,  5  Selden,  176.)  The  revised  statutes  have 
wisely  regulated  this  power.  They  enact,  that  upon  the  petition  or 
bill  of  any  person  interested  in  the  execution  of  a  trust,  and  under 
such  regulations  as  for  that  purpose  shall  be  established  by  the  court, 
the  supreme  court  may  remove  any  trustee  who  shall  have  violated 
or  threatened  to  violate  his  trust,  or  who  shall  be  insolvent,  or  whose 
insolvency  shall  be  apprehended,  or  who  for  any  other  cause  shall  be 
deemed  an  unsuitable  person  to  execute  the  trust.  The  court  is  also 
empowered,  in  such  a  case,  to  appoint  a  new  trustee  in  the  place  of 
the  one  resigned  or  removed ;  and  when,  in  consequence  of  such  re- 
signation or  removal,  there  shall  be  no  acting  trustee,  the  court,  in 
its  discretion,  may  appoint  new  trustees,  or  cause  the  trust  to  be  ex- 
ecuted by  one  of  its  own  officers,  under  its  direction.  These  provisions 
extend  only  to  cases  of  express  trusts.  (1  R.  S.  730,  731,  §§  70-72.) 
And  it  has  been  held  also  that  they  do  not  embrace  the  case  of  ex- 
ecutors as  such,  so  far  as  relates  to  their  power  to  sue  for  and  collect 
debts  due  to  the  testator ;  or  as  relates  to  their  liability  to  creditors, 
legatees  and  next  of  kin,  on  account  of  the  personal  estate  which 
may  have  come  to  their  hands.  But  when  the  duties  which  belong 
to  them  as  executors  have  been  discharged,  and  the  division  of  the 
estate  made,  it  was  said  that  the  court  of  chancery,  now  the  supreme 
court,  had  the  power  to  accept  the  resignation  of  one  of  such  execu- 
tors to  whom  a  trust  fund  consisting  of  personal  estate  and  the  pro- 
ceeds of  the  real  estate,  was  devised,  and  to  appoint  another  in  his 
place,  as  one  of  the  trustees  to  hold  its  funds  set  apart  for  the  lega- 
tees of  the  testator.     {In  the  matter  of  Van  Wyck,  supra.) 

There  have  been  some  decisions  of  the  courts  on  the  subject  of  the 
resignation  of  trustees.  It  has  been  held  that  a  provision  in  a  will 
for  the  appointment  of  new  trustees  in  case  the  number  should  be 
reduced  by  death,  removal  from  the  United  States,  or  otherwise, 
does  not  authorize  a  trustee  to  resign.  {Cruger  v.  Halliday,  11 
Paige,  314.)  It  was  even  doubted  in  the  last  case,  whether  the 
concurrence  of  every  person  interested  in  the  execution  of  the  trust, 
would  render  the  resignation  valid,  without  an  order  or  decree  of 
the  court. 


LIMITATION  OF  ACTIONS.  247 

A  resignation  will  not  be  accepted  without  good  cause  shown  for 
it.  If  the  trustees  have  accepted  the  trusts,  and  especially  if  they 
have  accepted  a  legacy  given  upon  condition  of  their  executing  the 
trust,  the  court  will  not  discharge  them,  on  their  own  motion,  un- 
less good  and  sufficient  reasons  be  shown.  {Craig  v.  Craig ^  3  Barh. 
Ch.  76.) 

The  acceptance  of  a  resignation  of  a  trustee,  and  his  removal  from 
office  by  the  court,  depend  on  different  principles.  The  first  does 
not  imply  any  delinquency  in  the  trustee ;  but  the  last  does.  This 
delinquency  may  have  reference  to  the  character  or  habits  of  the 
trustee  personally,  or  his  conduct  towards  the  estate.  If  he  refuses 
to  execute  a  trust  for  the  benefit  of  creditors,  it  is  a  good  ground  to 
remove  hinj  on  the  application  of  the  latter.  {Matter  of  the  Me- 
chanics' Bank,  2  Barh.  446.)  Or  it  would  be  proper  to  order  him 
to  do  the  act  imposed  upon  him  by  his  duty. 

A  trust  estate,  it  has  been  already  said,  will  cease  when  the  pur- 
poses for  which  it  was  created  have  ceased.  (1  E.  S.  730,  §  67. 
Sterriher  v.  Dickinson,  9  Barh.  516.) 

It  will  cease  when  the  legal  and  equitable  estates  in  land,  being 
co-extensive,  unite  in  the  same  person.  The  former,  in  such  a  case, 
is  extinguished  in  the  latter.  {Nicholson  v.  Halsey,  1  John.  Ch. 
417.)  There  are  some  exceptions  to  the  rule.  Both  the  rule  and 
the  exceptions  more  frequently  are  exemplified  in  the  case  of  mort- 
gage securities  than  in  any  other  cases.  If  the  situation  of  the  es- 
tate, or  the  interest  of  the  mortgagee,  requires  that  the  lien  of  the 
legal  estate  should  be  kept  distinct,  or  if  the  mortgagee  by  reason 
of  some  disability  is  unable  to  elect,  or  if  there  be  a  decisive  inten- 
tion of  the  mortgagee  to  keep  them  separate,  a  court  of  equity  will 
prevent  a  merger,  and  preserve  the  estates  distinct.  {James  v.  John- 
son, 6  John.  Ch.  417.  James  v.  Mowry,  2  Coioen,  246.  Eussell  v. 
Austin,  1  Paige,  192.  Cleft  v.  White,  2  Kern.  519,  reversing  pre- 
vious rejwrt,  15  Barh.  70.) 

At  common  law  there  was  no  stated  or  fixed  period  as  to  the 
bringing  of  actions.  Limitations  are  created  by,  and  derive  their 
authority  from,  the  statute.  {TJie  People  v.  Gilhert,  18  John.  228. 
Wilcox  V.  Fitch,  20  id.  472.)  Until  the  revision  of  1830,  (2  B.  S. 
395,  §  28,)  the  statute  of  limitations  did  not  afiect  the  government, 
nor  was  there  any  presumption  of  payment  of  demands  due  to  the 
people,  in  analogy  to  the  statute.  {Fairbanks  v.  Wood,  17  Wen- 
dell, 329.) 


248  POWERS. 

.  Formerly  there  was  no  legal  bar  to  an  action  for  a  legacy,  yet  the 
courts  in  regard  to  very  stale  demands,  adopted  the  provisions  of  the 
statute,  in  the  exercise  of  their  discretion.  (Arden  v.  Arden,  1  John. 
CJi.  313.)  No  lapse  of  time  is  a  bar  to  a  direct  trust,  as  between 
trustee  and  cestui  que  trust.  (Decouche  v.  Savetier,  3  John  Ck. 
190.  Goodrich  v.  Pendleton,  Id.  384,  390.)  In  Souzer  v.  De  Mey- 
er, (2  Paige,  577,)  decided  in  1831,  Chancellor  Wahvorth  held  that 
the  statute  of  limitations  was  a  bar  to  a  legacy,  unless  it  was  charged 
on  land.  He  put  it  upon  the  ground  that  courts  of  law  have  con- 
current jurisdiction  with  courts  of  equity  to  recover  such  legacies. 
When  there  is  a  concurrent  remedy  at  law,  the  court  thought  that 
time  was  as  absolute  a  bar  to  discovery  or  relief  in  equity,  as  it 
would  be  in  a  suit  at  law.  {Humbert  v.  Trinity  Church;  24  Wend. 
587,  affirmedl  Paige,  195.) 

Since  the  foregoing  decisions  were  made,  the  court  of  chancery  has 
been  abolished,  and  the  jurisdiction  in  matters  of  equity  vested  in 
the  same  tribunal  which  takes  the  cognizance  of  actions  at  law. 
The  reasons  on  which  some  of  those  cases  are  based  now  fail  alto- 
gether. In  addition  to  this,  the  statute  of  limitations  has  under- 
gone great  changes.  It  is  now  incorporated  in  the  code  of  proce- 
dure. In  an  action  for  relief,  on  the  ground  of  fraud,  in  cases  which 
heretofore  were  solely  cognizable  by  the  court  of  chancery,  the  ac- 
tion must  now  be  brought  within  six  years,  but  the  time  is  compu- 
ted from  the  discovery,  by  the  aggrieved  party,  of  the  facts  consti- 
tuting the  fraud.  {Code,  §  91,  sub.  6.)  But  there  seems  to  be  no 
limitation  in  the  code,  to  a  direct  trust,  as  between  trustee  and  ces- 
tui que  trust;  thus  leaving  that  class  of  cases  to  the  doctrine  as  it 
existed  at  common  law. 


CHAPTER  II. 


OF  POWEKS. 


Powers  are  of  two  sorts  :  first,  such  as  owe  their  origin  to  the  stat- 
ute of  uses,  and  which  are  now  defined  and  regulated  by  the  revised 
statutes ;  and  secondly,  such  as  existed  at  common  law,  being  sim- 
ply powers  of  attorney,  to  convey  lands  in  the  name  and  for  the  ben- 
efit of  the  owner.  We  shall  treat  of  both  these  kinds  of  power,  in 
their  order. 


POWERS  UNDER  THE  STATUTE.  249 


Section  I. 
Of  Powers  unde7'  the  Statute. 

The  revisers,  in  their  note  to  the  article  on  this  subject,  remark 
that  the  law  of  powers  is  the  most  intricate  labyrinth  in  our  juris- 
prudence. To  make  the  doctrine  familiar  to  the  capacity  of  men  of 
common  understanding,  they  began  by  proposing  to  abolish  powers 
as  they  existed  at  that  time,  and  prior  and  after  that  time,  (1830,) 
they  proposed  that  the  creation,  construction  and  execution  of 
powers  should  be  governed  by  the  provisions  of  that  article.  It  was 
so  enacted  by  the  legislature.     (1  B.  8.  732,  §§  93,  94.) 

By  the  rules  of  the  common  law  a  fee  simple  could  not  be  limited 
upon  or  after  a  fee,  nor  could  a  condition  be  reserved  to  a  stranger. 
These  difficulties  were  overcome  by  means  of  the  statute  of  uses. 
We  have  seen  that  the  law  with  respect  to  tbe  first  has  been  changed 
in  this  state  by  the  act  relative  to  the  creation  and  division  of  es- 
tates. (1  B.  S.  723,  §  16.)  Hence,  independently  of  the  doctrine 
of  powers,  a  contingent  remainder  in  fee  may  be  created  on  a  prior 
remainder  in  fee  under  certain  restrictions.  And  with  respect  to 
the  second,  and  also  with  respect  to  a  power  of  revocation,  the  doc- 
trine of  powers  has  afforded  the  requisite  relief. 

The  statute  of  New  York  is  a  brief  epitome  of  the  law  of  powers, 
as  gathered  from  the  systematic  treatises  on  the  subject,  and  the 
adjudged  cases.  No  two  authors  entirely  agree  as  to  the  division 
of  the  subject,  nor  in  all  their  explanations.  The  legislature  adopted 
that  line  of  discussion  of  the  matter,  which  seemed  the  most  simple 
and  congenial  to  our  institutions.  The  simplicity  of  our  modes  of 
conveyance,  and  our  habits  and  ways  of  business,  have  hitherto  af- 
forded few  occasions  for  the  application  of  the  rules  we  are  called 
upon  to  consider.    . 

Writers  have  not  been  entirely  agreed  in  their  definition  of  a  pow- 
er. It  is  defined  by  one  to  be  an  authority  retained  by,  or  conferred 
upon  a  person  to  deal  with  property,  so  as  to  affect,  more  or  less, 
interests  or  estates  therein  possessed,  either  by  himself  or  others, 
albeit  it  be  underived  therefrom.  ( Wharton's  Conveyancing,  p.  419.) 
Mr.  Crabbe,  in  his  treatise  on  the  law  of  real  property,  says :  a  pow- 
er, in  the  legal  sense  of  the  word,  is  an  authority  which  enables  one 


250  DEFINITION  OF  A  POWER. 

person  to  do  an  act  for  another,  and  it  is  to  be  distinguished  both 
from  a  trust  and  an  interest.  ■  Powers,  says  he,  are  never  imperative  ; 
they  leave  the  act  to  be  done  at  the  will  of  the  party  to  whom  they 
are  given.  Trusts  are  always  imperative,  and  are  obligatory  upon 
the  conscience  of  the  party  intrusted.  Lord  Eldon,  in  Broiun  v. 
Eiggs,  (8  Ves.  570,)  in  speaking  of  the  distinction  between  trusts 
and  powers,  says :  It  is  perfectly  .clear  that,  where  there  is  a  mere 
pozver  of  disposing,  and  that  power  is  not  executed,  a  court  of  equity 
cannot  execute  it.  It  is  equally  clear  that,  wherever  a  trust  is  cre- 
ated, and  the  execution  of  that  trust  fails,  by  the  death  of  the  trus- 
tee, or  by  accident,  a  court  of  equity  will  execute  the  trust.  We 
have  seen  in  the  foregoing  chapter  that  the  same  rule  obtains  here 
as  to  trusts.  Equity  never  permits  a  trust  to  fail  for  the  want  of 
a  trustee. 

The  definition  of  a  power  given  by  the  revised  statutes  is  substan- 
tially the  same.  It  is  defined  to  be  an  authority  to  do  some  act  in 
relation  to  lands,  or  the  creation  of  estates  therein,  or  of  charges 
thereon,  which  the  owner  granting  or  receiving  such  power  might 
himself  lawfully  perform.     (1  B.  S.  732,  §  74.) 

The  distinction  between  a  trust  and  a  poiver  was  exemplified  in 
the  case  of  Tucker  v.  Tucker,  (1  Seld.  410.)  The  question  arose 
under  a  will,  the  seventh  clause  of  which  was  in  these  words :  "  I 
do  authorize  and  empower  my  executors  to  exchange,  sell  and  con- 
vey to  and  with  adjoining  owners  or  others,  such  gores,  strips,  or 
pieces  of  land  as  they  may  deem  advantageous  to  my  estate,  by 
straightening  and  equalizing  boundary  lines,  and  to  execute,  deliver 
and  receive  sufficient  deeds  therefor."  The  question  was  whether 
the  foregoing  clause  created  a  trust  in  the  executors  or  was  merely 
a  power.  If  a  trust,  from  its  connection  with  other  parts  of  the  will 
it  was  shown  to  be  void,  in  consequence  of  suspending  the  power  of 
alienation  for  a  longer  time  than  the  statute  allows.  It  would  be  a 
trust,  if  it  was  necessary  for  the  executors  to  take  an  estate  by  im- 
plication, in  the  lands  of  the  testator,  in  order  to  effectuate  his  in- 
tention. But  the  court  held  that  all  the  duties  enjoined  upon  the 
executors  by  the  will,  in  regard  to  the  lands,  could  be  discharged 
Tinder  the  power,  and  that  the  clause  in  question  merely  created  such 
power.  It  fell  within  the  definition  just  given.  '  The  authority  con- 
ferred upon  the  executors  by  the  testator  was  to  do  some  acts  in 
relation  to  the  lands,  which  the  owner  granting  the  power  might 
himself  lawfully  do.     (1  B.  S.  732,  §  74.) 


NAKED  POWERS.  251 

In  Breivster  v.  Striker,  (2  Comst.  20,)  the  provisions  of  the  will 
not  only  showed,  in  the  opinion  of  the  court,  that  the  testator  intend- 
ed to  give  the  entire  and  exclusive  possession,  charge  and  manage- 
ment of  the  real  estate  to  the  executors  ;  but  by  the  clause  that  "  the 
said  real  estate  shall  not,  at  any  time  hereafter,  be  sold  or  aliened, 
but  by  my  said  executors  and  the  survivor  of  them,"  also  intended 
to  withhold  from  the  grandchildren  the  power  to  sell,  and  thus 
prevent  the  alienation  of  the  estate,  or  any  incumbrance  thereon, 
until  the  inheritance  should  finally  vest  in  fee  simple  absolute,  un- 
der the  limitations  in  the  will  ;"  and  this  could  not  be  accomplished 
unless  the  title  vested  in  the  executors.  •  There  was  therefore  a  neces- 
sity for  holding  that  a  trust  term  vested  in  the  executors  by  impli- 
cation, and  by  thus  holding  the  intention  of  the  testator  was 
effectual.     This,  then,  was  a  trust  and  not  a  power. 

So  also,  in  Dempsey  v.  Tyler,  (3  Duer,  74,)  decided  in  1854,  it  was 
held  that  during  coverture  the  wife  possesses  no  power  to  convey 
by  deed  to  her  husband,  and  is  destitute  of  any  testamentary  capa- 
city. Such  power  or  capacity  cannot  be  created  over  lands  belonging 
to  herself  in  fee,  by  virtue  of  any  agreement  made  during  coverture 
between  herself  and  her  husband.  It  can  only  be  created  or  pre- 
served, by  an  ante-nuptial  agreement.  Having  power  to  grant  or 
devise,  while  a  feme  covert,  she  may  by  such  agreement  reserve  a 
power,  by  the  due  execution  of  which  she  may  make  a  valid  will  in 
favor  of  her  husband.  The  instruments  under  which  the  case  arose, 
were  all  executed  prior  to  1848,  and  it  was  not  supposed  that  the 
laws  of  1848  and  1849,  relative  to  the  estates  of  married  women, 
affected  it  in  the  least.     {L.  of  1848,  p.  307.     L.  of  1849,  p.  528.) 

By  the  last  mentioned  statute,  in  connection  with  the  act  of  1860, 
cha])ter  90,  a  married  woman  has  the  same  control  and  power  of  dis- 
position during  coverture  over  her  estate  real  and  personal,  as  if 
she  was  a  feme  sole. 

It  is  quite  obvious  that  no  person  is  capable  of  granting  a  power, 
who  is  not  at  the  same  time  capable  of  aliening  some  interest  in  the 
lands  to  which  the  power  relates.  (1  R.  S.  732,  §  75.)  This  is  a 
truism,  the  force  of  which  is  not  increased  by  a  legislative  enactment. 
That  a  party  must  have  something  himself,  before  he  can  bestow  it 
upon  others,  is  quite  manifest.     [Selden  v.  VermiJyea,  3  Comst.  536.) 

Having  shown  the  difference  between  a  power  and  a  trust,  it  re- 
mains to  point  out  the  distinction  between  naked  powers,  and  pow- 
ers coupled  with  an  interest.     A  naked  power  does  not,  at  common 


252  DIFFERENT  KINDS  OF  POWERS. 

law,  survive.  {Osgood  v.  Franklin,  2  John.  Ch.  1 ;  affirmed,  14 
John.  527.)  But  a  power  to  sell  coupled  with  an  interest,  and  ac- 
compained  by  possession,  sumves  the  person  creating  it.  (Knapp  v. 
Alvord,  10  Paige,  205.)  A  power  to  a  mortgagee,  to  sell  on  default 
of  payment,  is  coupled  with  an  interest,  and  survives  the  mortgage; 
[Bergen  v.  Bennett,  1  Cnines'  Cas.  1 ;)  and  it  may  be  executed  here 
by  an  administrator  of  the  mortgagee,  duly  appointed  in  another 
state.     (Doolittle  v.  Leiois,  7  John.  Ch.  R.  45.) 

The  powers  authorized  by  the  revised  statutes  are  general  or 
sp)ecial,  and  beneficial  or  in  trust.  The  statute  defines  them  as 
follows  :  a  power  is  general, 'when  it  authorizes  the  alienation  in  fee 
by  means  of  a  conveyance,  will,  or  charge  of  the  lands  embraced  in 
the  power,  to  any  alienee  whatever.  A  power  is  special,  1st,  where 
the  persons  or  class  of  persons  to  whom  the  disposition  of  the  lands 
under  the  power  to  be  made,  are  designated ;  2d,  where  the  power 
authorizes  the  alienation  by  means  of  a  conveyance,  will  or  charge  of 
a  particular  estate  or  interest  less  than  a  fee'  A  general  or  special 
power  is  beneficial  when  no  power  other  than  the  grantee  has  by  the 
terms  of  its  creation,  any  interest  in  its  execution.  (1  R.  S.  732, 
§§  76  to  79.) 

The  revised  statutes  use  the  term  "grantor  of  a  power,"  as  de- 
signating the  person  by  whom  a  power  is  created,  whether  by  grant 
or  devise  ;  and  the  term  "grantee  of  a  power,"  as  designating  the 
person  in  whom  a  power  is  vested,  whether  by  grant,  devise  or  res- 
ervation.    {Id.  §  135.) 

The  English  books  make  a  different  distribution  of  the  subject. 
They  denominate  the  person  possessing  the  property  as  the  "  donee" 
of  the  power,  and  they  divide  them  into,  1.  Restraining  powers  ;  and 
2.  Enabling  powers.  The  first  is  where  the  owner  of  the  estate  con- 
veys it  to  trustees,  reserving  a  power  to  himself,  under  particular 
circumstances  and  certain  restrictions,  to  revoke,  alter,  enlarge  or  di- 
minish the  trusts  declared  therein  ;  and  the  second  confers  upon 
persons,  not  seised  of  the  fee,  the  right  of  creating  interests  out  of  it,, 
which  could  not  be  done  by  the  particular  tenant  or  donee,  unless 
by  virtue  of  such  delegated  authority.  It  is  called  an  enabling 
power,  because  it  gives  a  right  to  create  interests  which  are  to  take 
effect  out  of  estates  vested  in  other  persons.  "Both  these  kinds  of 
powers  were,  either  1.  Appendant  or  appurtenant ;  2.  Collateral  or  in 
.gross ;  or  3.  Simply  collateral,  which  are  either  first,  general,  or  sec- 
ond, special.     ( Wharton's  Convey.  424,  425.     Crahbe's  Law  of  Real 


BY  WHAT  WORDS  CREATED.  253 

Prop.  446.)  The  revisers,  in  their  note,  say  that  they  propose  a 
•  new  division  of  powers.  And  the  legislature  concurring  with  them, 
adopted  the  classification  which  we  have  already  noticed.  This  brief 
reference  to  a  different  mode  of  classification  was  necessary  in  order 
to  understand  the  cases  which  may  occasionally  allude  to  the  former 
terms. 

With  regard  to  the  mode  of  creating  a  power,  it  may  be  observed 
that  no  formal  words  are  necessary.  The  party  creating  it  may  in- 
dicate his  intention  in  any  language  that  he  chooses  to  adopt.  Still, 
as  language  is  the  instrument  by  which  ideas  are  communicated,  it 
is  desirable  that  a  power  should  be  reserved  or  created  by  such  words 
as  clearly  express  the  intention.  In  the  statute  on  this  subject,  it  is 
enacted  that  a  power  may  be  granted  by  a  suitable  clause  contained 
in  a  conve)'ance  of  some  estate  in  the  lands  to  which  the  power  re- 
lates, or  by  a  devise  contained  in  a  last  will  and  testament.  (1  R.  S. 
735,  §  106.)  In  Dorlcmd  v.  Borland,  (2  Barb.  80,)  the  supreme 
court  held  that  no  formal  set  of  words  was  requisite  to  create  or 
reserve  a  power.  It  is  sufficient  if  the  intention  be  clearly  declared. 
The  language  of  the  testator  is  to  be  construed  equitably  and  liber- 
ally in  furtherance  of  the  intention.  {Jackson  v.  Verder,  11  John. 
169.  Haivhins  v.  Kern}),  3  East,  441.  Right  v.  Thomas,  3  Burr. 
1441.)  A  devise  of  land  "  to  be  sold  by"  executors,  without  words 
giving  the  estate  to  them,  confers  a  bare  power  only  on  the  execu- 
tors.    {Wharton's  Conveij.  429.     1  Sug.  on  Foiuers,  132-134.) 

The  intention  of  the  testator  is  much  regarded  in  the  construction 
of  powers  to  sell,  created  by  the  will,  and  they  are  construed  with 
greater  or  less  latitude  in  reference  to  that  intent.  {Osgood  v. 
FranJdin,  2  John.  Ch.  1.)  Courts  of  equity  look  to  the  end  and  de- 
sign of  the  parties,  in  considering  the  extent  of  the  powers,  and  to 
a  substantial,  rather  than  a  literal  execution  of  the  power.  On  this 
principle,  a  power  limited  in  terms  has,  in  favor  of  the  intention  been 
deemed  a  general  power ;  and  a  general  power  in  terms,  has  been  cut 
down  to  a  particular  purpose.  (  Wilson  v.  Troup,  7  Johti.  Ch.  25.) 
In  the  same  case  it  was  said  that  a  power  to  mortgage  includes  in 
it  a  power  to  authorize  the  mortgagee  to  sell  in  default  of  payment, 
because  the  power  to  sell  is  one  of  the  customary  and  lawful  reme- 
dies of  the  mortgagee,  and  has  repeatedly  been  and  is  regulated  by 
statute.     {S.  C.  affirmed,  2  Coioen,  195.) 

But  a  power  to  sell,  and  on  such  sale  "  to  execute,  seal  and  deliver. 


254  POWER  TO  SELL  LANDS. 

in  the  name  of  the  principal,  such  conveyances  and  assurances  in  the 
law  of  the  premises  to  the  purchaser  in  fee  as  should  be  needful  or 
necessary  according  to  the  judgment  of  the  attorney,"  does  not  author- 
ize the  latter  to  execute  a  deed  with  covenants,  so  as  to  bind  the 
principal.  {Nixon  v.  Eyserott,  5  John.  58.)  Nor  does  a  power  to 
bargain  and  sell  land  confer  authority  to  license  any  one  to  enter  and 
commit  waste,  or  to  cut  timber.  (Hubbard  v.  Elmer,  9  Wend.  446.) 
Nor  does  a  power  to  sell  and  convey  in  itself  confer  a  power  to  mort- 
gage. (Bloomer  v.  Waldron,  3  Hill,  361,  overruling  dictum  in 
Williams  v.  Woodard,  2  Wend.  487,  492.  Coutant  v.  Servoss, 
3  Barb.  128.) 

There  are  some  cases  where  a  power  seems  to  be  extended  by  con- 
struction. In  Williams  v.  Woodard,  (supra,)  it  was  held  that  a 
power  "  to  bargain,  sell,  assure  and  convey,"  authorized  a  lease  for 
life  upon  rents,  with  a  covenant  for  a  future  conveyance  in  fee,  upon 
a  certain  payment.  And  in  Craig  v.  Craig,  (3  Barb.  Ch.  76,)  the 
chancellor  held  that  a  power  given  by  will  to  divide  lands  authorized 
the  execution  of  a  valid  legal  instrument,  setting  off  the  shares  in 
severalty. 

A  naked  power  to  sell  must  be  strictly  pursued.  When  the  will 
contained  a  naked  power  to  sell,  accompanied  by  a  direction,  that 
the  moneys  arising  from  the  sale  should  be  invested,  &c.  for  the  pur- 
poses of  the  will,  it  was  held  that  according  to  the  obvious  import 
of  the  power,  the  sale  must  he  for  cash,  or  something  that  could  be 
invested ;  and  a  deed  under  it,  reciting  facts  which  showed  that  the 
o-rantor  conveyed  partly  for  money,  and  partly  in  consideration  of 
an  equitable  claim  of  the  grantee,  was  held  a  departure  from  its 
purpose,  and  therefore  void.  (Waldron  v.  McOomb,  1  Hill,  111.) 
Though  this  case  was  reversed  by  the  court  of  errors,  it  was  upon  a 
ground  not  affecting  the  above  principle.  (Same  case  in  error, 
7  Hill,  335.) 

A  power  to  sell  land  for  a  certain  sum  means  for  cash,  unless 
there  be  something  in  the  power,  or  in  the  usage  of  trade,  to  vary 
the  legal  construction ;  and  a  power  to  contract  for  such  sale  means 
for  an  absolute  sale,  and  not  for  one  optional  with  the  vendee.  If 
the  power  be  to  sell  the  land,  an  executory  contract  is  no  execution 
of  it,     (Ives  V.  Davenport,  3  Hill,  373.) 

A  special  power  to  sell,  given  by  will,  must  be  exercised  in  the 
mode  prescribed  by  it.  If  the  will  directs  a  sale  of  real  estate  at 
public  auction,  to  pay  off  legacies,  as  they  become  due,  and  the  ex- 


WHO  MUST  UNITE.  255 

ecutor  sells  at  private  sale  before  the  legacies  become  due,  the  sale 
is  void.  {Pendleton  v.  Fay,  2  Paige,  202.  Egerton  v.  ConUin, 
25  Wend.  224.) 

"With  respect  to  the  person  by  whom  a  power  can  be  executed, 
the  rule  formerly  was  that  it  could  only  be  so  done  by  a  person  sui 
juris;  so  that  a/eme  covert  could  not  execute  a  power  so  as  to 
affect  her  own  interest,  if  by  the  terms  of  the  power  it  must  be  exe- 
cuted while  she  was  sole.  But  unless  so  restricted  she  might  exe- 
cute any  power,  and  it  was  immaterial  whether  it  was  granted  to 
her  before  or  after  her  coverture.  So  also  an  infant  could  execute  a 
naked  power.  {Crabhe's  Laio  of  Real  Estate,  689.)  This  subject  is 
now  regulated  by  the  revised  statutes,  which  enact  that  a  general 
and  beneficial  power  may  be  given  a  married  woman  to  dispose, 
during  her  marriage,  and  without  the  concurrence  of  her  husband, 
of  lands  conveyed  or  devised  to  her  in  fee.  (1  R.  S.  732,  §  80.  Id. 
735,  §  110.)  But  no  power  vested  in  a  married  woman  during  her 
infiincy  can  be  exercised  by  her  until  she  attains  her  full  age.  {Id. 
§  111.  Frazer  v.  Weston,  1  Barb.  Ch.  240.  Sti^otig  v.  Wilkins,  id. 
13.  Jackson  v.  Ediuards,  7  Paige,  387.  WrigJd  v.  TaUmadge, 
1  Smith,  307.      Van  Wort  v.  Benedict,  1  Bradf.  115.) 

When  a  power  is  given  to  several,  all  must  unite  in  the  execution 
of  it  by  the  rules  of  the  common  law.  This  principle  is  retained  by 
the  statute,  with  the  addition  that  if  previous  to  such  execution,  one 
or  more  of  such  persons  should  die,  the  power  may  be  exercised  by 
the  survivor  or  survivors.  (1  R.  S.  735,  §  112.)  The  application 
of  this  principle  is  more  frequent  to  executors  than  to  any  other 
class  of  persons.  The  law  has  wisely  provided  that  when  a  part 
only  of  the  executors  qualify  and  accept  the  trust,  those  who  qualify 
have  full  authority  without  the  others  to  execute  a  power  to  convey 
real  estate,  which  is  by  the  will  conferred  on  the  executors  named  in 
it.  Those  executors  who  do  not  prove  the  will  are  superseded  by 
the  grant  of  letters  testamentary  or  of  administration  to  others  ;  and 
they  cannot  dispose  of  any  part  of  the  estate  until  they  appear  and 
qualify  as  executors.  (2  R.  S.  109,  §  55.  Ogden  v.  Smith,  2  Paige, 
198.   "^ Taylor  v.  Morris,  1  Comst.  358.     Willard  on  Ex'rs,  144.) 

But  it  seems  if  the  supreme  court  discharges  one  of  several  execu- 
tors, without  appointing  a  new  trustee  in  his  place,  the  remaining 
executors  are  not  authorized  to  execute  a  power  in  trust  to  sell  the 
testator's  real  estate,  so  as  to  give  a  good  title  to  the  purchaser. 


256  TO  WHOM  A  POWER  MAT  BE  GIVEN. 

The  court  should,  on  discharging  one  or  more,  supply  the  vacancy 
by  a  new  appointment,  and  then  the  original  and  substituted 
trustees  can  act  together  in  fulfillment  of  the  power.  {In  the  Mat- 
ter of  Van  Wych,  1  Barh.  Ch.  5Q5,  570.) 

The  foregoing  provisions  do  not  extend  to  cases  where  a  power  is 
to  be  executed  with  the  consent  of  third  persons,  and  one  of  those 
persons  dies  before  such  consent  is  given.  By  the  common  law,  in 
a  case  of  that  kind,  the  execution  of  the  power  was  rendered  im- 
possible. The  revised  statutes  have  provided  that  when  the  consent 
of  a  third  person  to  the  execution  of  a  power  is  requisite,  such  con- 
sent shall  be  expressed  in  the  instrument  by  which  the  power  is  exe- 
cuted, or  shall  be  certified  in  writing  thereon.  In  the  first  case  the 
instrument  of  execution,  in  the  second  the  certificate,  must  be  signed 
by  the  party  whose  consent  is  required ;  and  to  entitle  the  instru- 
ment to  be  recorded  such  signature  must  be  duly  proved  or  acknowl- 
edged in  the  same  manner  as  if  subscribed  to  a  conveyance  of  land. 
(1  R.  S.  736,  §  122.)  But  the  statute  does  not  extend  the  principles 
applicable  to  the  death  of  one  of  several  grantees  of  a  power,  (1  R.  S. 
735,  §  112,)  to  the  case  of  the  death  of  one  of  several  whose  consent 
to  the  execution  of  a  power  was  required. 

Accordingly  where  land  was  devised  to  a  son  for  life,  and  then  to 
his  heirs,  with  power  to  him  to  sell  and  convey  the  same,  by  and 
■with  the  consent  of  his  mother  and  brother,  and  she  died  without 
consenting,  and  the  son  afterwards,  with  the  consent  of  his  brother, 
sold  and  conveyed  the  land,  the  court  of  appeals  held  that  no  title 
passed  by  virtue  of  the  power.     (Barber  v.  Cary,  1  Kern.  397.) 

The  acts  for  the  more  effectual  protection  of  the  property  of  mar- 
ried women,  (L.  o/*  1848,  j3.  307,  a7id  of  1849,  p.  528,)  and  the  act 
of  1860,  concerning  the  rights  and  liabilities  of  husband  and  wife, 
chapter  90,  do  not  afiect  the  doctrine  of  trusts  or  powers.  Those 
statutes  indeed  render  the  creation  of  trusts  or  powers  in  favor  of 
married  women,  in  a  great  measure  unnecessary,  for  the  security  and 
protection  of  their  rights.  But  they  do  not  forbid  the  creation  of 
trusts,  or  the  granting  of  powers  to  them  by  persons  desiring  to  se- 
cure them  from  want.  Such  trusts  and  powers  for  their  benefit  will 
still  occasionally  be  made;  though  they  will  be  of  less  frequent  oc- 
currence. The  doctrine,  therefore,  is  still  a  necessary  part  of  our 
jurisprudence,  and  should  be  understood. 

A  power  may  be  vested  in  any  person  capable  in  law  of  holding, 


POWER  OF  REVOCATION.  257 

but  cannot  be  exercised  by  any  person  not  capable  of  aliening  lands, 
except  in  the  case  of  married  women.     (1  R.  S.  735,  §  109.) 

The  question  as  to  how  far  a  party  having  a  disposing  power  over 
property  shall,  as  against  strangers,  be  treated  as  the  absolute  own- 
er, is  often  an  interesting  and  imjlortant  one.  In  general,  there  is 
no  more  decisive  incident  of  ownership,  than  the  jus  disponendi. 
It  was  one  of  the  objections  to  trusts  and  powers  that  they  were 
sometimes  made  subservient  to  purposes  of  fraud.  They  enabled 
the  party  beneficially  interested,  to  escape  from  the  consequences 
■which  attach  to  unfettered  ownership. 

The  revised  statutes  contain  suitable  provisions  on  these  subjects 
in  favor  of  creditors  and  purchasers  in  good  faith.  "When  an  abso- 
lute power  of  disposition,  not  accompanied  by  any  trust,  is  given  to 
the  owner  of  a  particular  estate  for  life  or  years,  such  estate  is 
changed  into  an  estate  in  fee,  absolute  in  respect  to  the  rights  of 
creditors  and  purchasers,  but  subject  to  any  future  estates  limited 
tbereon,  in  case  the  power  should  not  be  executed,  or  the  lands 
should  not  be  sold  for  the  satisfaction  of  debts.  (1  R.  S.  732,  §  81.) 
The  same  consequence  follows  when  a  like  power  of  disposition  is 
given  to  a  person  to  whom  no  loarticular  estate  is  limited.  With 
respect  to  creditors  and  purchasers  he  is  thus  treated  as  owner  of 
the  fee.     {Id.  §  82.) 

So  also  in  all  cases  where  such  power  of  disposition  is  given,  and 
no  remainder  is  limited  on  the  estate  of  the  grantee  of  the  power, 
the  latter  is  entitled  to  an  absolute  fee.     {Id.  §  83.) 

This  principle  is  not  limited  to  a  power  of  disposition  by  deed. 
A  general  and  beneficial  power  to  devise  an  inheritance,  given  to  a 
tenant  for  life  or  for  years,  is  equivalent  to  an  absolute  power  of  dis- 
position as  against  creditors  and  purchasers.  The  grantee,  who  is 
enabled  in  his  lifetime  to  dispose  of  the  entire  fee  for  his  own  bene- 
fit, must  be  deemed  to  have  an  absolute  power  of  disposition.  {Id. 
§§  84,  85.) 

Nor  is  this  doctrine  confined  to  cases  when  the  power  of  disposi- 
tion is  granted  to  others.  It  is  applicable  to  cases  where  the  grantor, 
in  any  conveyance  reserves  to  himself  for  his  own  benefit,  an  abso- 
lute power  of  revocation.  With  respect  to  the  rights  of  creditors 
and  purchasers,  he  is  deemed  the  absolute  owner  of  the  estate,  not- 
withstanding his  conveyance.     {Id.  §  86.) 

It  has  been  seen  that  a  general  and  beneficial  power  may  be  given 
to  a  married  woman  to  dispose,  during  her  marriage,  and  without 

Will.— 17 


258  POWER  TO  A  MARRIED  WOMAN, 

the  concurrence  of  her  husband,  of  lands  conveyed  or  devised  to  her 
in  fee.  {Id.  §  80.)  And  by  a  subsequent  section,  a  special  and  ben- 
eficial power  may  be  granted  1.  to  a  married  woman  to  dispose,  during 
the  marriage,  and  without  the  concurrence  of  her  husband,  of  any 
estate  less  than  a  fee,  helonginy  to  her,  in  the  lands  to  which  the 
power  relates ;  2.  to  a  tenant  for  life  of  the  lands  embraced  in  the 
power,  to  make  leases  for  not  more  than  twenty-une  years,  and  to 
commence  in  possession  during  his  life.  {Id.  87.)  But  neither  of 
the  foregoing  sections  authorize  the  giving  to  her  of  a  heneficial  pow- 
er to  dispose  of  an  estate  or  interest  in  lands  as  a  feme  covert,  which 
interest  or  estate  does  not  belong  to  her ;  and  which,  upon  the  hap- 
pening of  the  contingency  or  event  provided  for  in  the  grant  or  de- 
vise, is  limited  to  some  other  person. 

Every  instrument,  except  a  will,  in  the  execution  of  a  power,  is  a 
conveyance  which  must  be  recorded  to  protect  the  estate  conveyed 
against  subsequent  bona  fide  purchasers  or  grantees  ;  and  when  such 
grant  or  conveyance  is  executed  by  a  feme  covert,  she  must  acknowl- 
edge it  upon  a  private  examination  before  the  judge  or  other  officer, 
as  in  the  case  of  other  conveyances  executed  by  femes  covert.  {\  R.  S. 
736,  §§  114, 117.)  But  her  husband  need  not  be  a  party  to  the  deed. 
(Jackson  v.  Edivards,  7  Paige,  402.) 

The  acts  for  the  more  effectual  protection  of  the  property  of  mar- 
ried women  already  noticed,  are  prospective  in  their  operation, 
{Westervelt  v.  Gregg,  2  Kernan  202,)  and  with  regard  to  past 
transactions  inoperative.  They  treat  the  feme  covert  more  like  a 
feme  sole,  than  the  revised  statutes  do  in  the  article  relative  to 
powers.  The  act  of  1849,  allows  a  married  woman  to  take  by  in- 
heritance, or  by  gift,  grant,  or  devise,  or  bequest  from  any  person 
other  than  her  husband,  and  hold  to  her  sole  and  separate  use,  and 
convey  and  devise  the  same,  in  the  same  manner,  and  with  the  like 
effect,  as  if  she  were  unmarried,  and  the  same  is  exempted  from  the 
disposal  of  her  husband,  and  a  liability  for  his  debts.  Under  this 
provision  the  supreme  court  have  held  that  it  is  unnecessary  for  the 
husband  to  unite  with  the  wife  in  the  conveyance  which  she  shall 
make,  and  that  she  is  not  required  to  acknowledge  the  execution  of 
the  deed  on  a  private  examination  apart  from  her  husband,  or  in 
any  other  way  than  if  she  were  unmarried.  {Blood  v.  Humphrey, 
17  Barb.  660.) 

The  foregoing  sections  relative  to  a  beneficial  power  to  a  mar- 
ried woman  to  dispose  during  her  marriage,  and  without  the  con- 


WHEN  POWER  IS  IN  TRUST.  259 

currence  of  her  husband  of  her  real  estate,  are  confined  to  such  real 
estate  as  belonged  to  her.  There  are  other  provisions  in  the  act 
by  which  a  power  in  trust  may  be  given  to  a  married  woman,  to 
dispose  of  an  estate,  or  interest  in  lands,  which  do  not  belong  to 
her,  to  or  for  the  benefit  of  other  persons,  as  the  objects  of  the  trust. 
The  right  to  create  such  powers  is  unquestionably  more  extensive 
than  that  to  create  powers  for  the  benefit  of  the  persons  to  whom  the 
power  itself  is  granted.     (Jackson  v.  Edwards,  supra.) 

A  power  may  be  vested  in  any  person  capable  in  law  of  holding, 
but  cannot  be  exercised  by  any  person  not  capable  of  aliening  lands, 
except  in  the  case  of  a  married  woman  of  full  age.  She  may  exe- 
cute a  power  during  her  marriage,  by  grant  or  devise,  as  may  be 
authorized  by  the  power,  without  the  concurrence  of  her  husband, 
unless  by  the  terms  of  the  power,  its  execution  by  her  during  mar- 
riage is  expressly  or  impliedly  prohibited.  (1  R.  S.  735,  §§  110, 
111.  Van  Wert  v.  Benedict,  1  Brad.  114.  Wright  v.  TaUmadge, 
15  N.  Y.  Bep.  307.)  The  court  of  appeals  held  in  the  last  case, 
that  the  foregoing  sections  completely  removed  the  disability  of 
coverture  in  respect  to  the  execution  of  powers.  She  can  there- 
fore execute  a  power  in  trust,  as  well  as  a  beneficial  power. 

A  general  power  is  in  trust  when  any  person,  or  class  of  persons, 
other  than  the  grantee  of  such  power,  is  designated  as  entitled  to 
the  proceeds  or  any  portion  of  the  proceeds,  or  other  benefits  to 
result  from  the  alienation  of  the  lands  according  to  the  power. 
(1  R.  S.  734,  §  94.     Selden  v.  Vermilyea,  1  Barb.  58.) 

A  special  power  is  in  trust,  1st,  when  the  disposition  which  it  au- 
thorizes is  limited  to  be  made  to  any  person  or  class  of  persons, 
other  than  the  grantee  of  such  power ;  2d,  when  any  person  or  class 
of  persons,  other  than  the  grantee,  is  designated  as  entitled  to  any 
benefit  from  the  disposition  or  charge  authorized  by  the  power. 
{Id  §  95,  S.  C.) 

Unless  its  execution  or  non-execution  is  made  expressly  to  de- 
pend on  the  will  of  the  grantee,  every  trust  power  is  imperative^ 
and  imposes  a  duty  on  the  grantee,  the  performance  of  which  may  be 
compelled  in  equity,  for  the  benefit  of  the  parties  interested.  And 
it  does  not  cease  to  be  imperative  when  the  grantee  has  the  right  to 
select  any,  and  exclude  others,  of  the  persons  designated  as  the  ob- 
jects of  the  trust.     {Id.  §§  96,  97.) 

Such  a  power  is  not  to  be  construed  as  discretionary,  because  the 
terms  used  are  simply  those  of  authority,  and  not  terms  of  discretion, 


260  DISTRIBUTION  UNDER  A  POWER. 

request,  or  recommendation ;  nor  because  a  right  of  selection  is  given 
to  the  donee  of  the  power.  A  power,  it  is  said,  is  always  in  trust, 
when  a  disposition  is  limited  to  be  made  to  a  class,  unless  its  exe- 
cution is  made  in  terms  to  depend  upon  the  mere  discretion  of  the 
grantee.  It  is  always  imperative,  when  the  property  given,  and 
the  persons  to  whom  it  is  given,  are  certain.  {Dominick  v.  Sayre, 
3  Sand.  S.  C.  R.  555.) 

In  cases  where  a  disposition  under  a  power  is  directed  to  be  made 
to,  or  among  or  between  several  persons,  without  any  specification  of 
the  share  or  sum  to  be  allotted  to  each,  courts  of  equity  were  accus- 
tomed to  hold  that  all  the  persons  designated  shall  be  entitled  to  an 
equal  proportion.  But  when  the  terms  of  the  power  imported  that 
the  estate  or  fund  was  to  be  distributed  between  the  persons  so  des- 
ignated, in  such  manner  or  proportions  as  the  trustee  of  the  power 
might  think  proper,  it  was  held  that  the  trustee  of  the  power  might 
allot  the  whole  to  any  one  or  more  of  such  persons  in  exclusion  of 
the  other.  And  if  the  trustee  of  the  power,  with  the  right  of  selec- 
tion, should  die,  leaving  the  power  unexecuted,  its  execution  could 
be  decreed  in  equity  for  the  benefit  equally  of  all  persons  designated 
as  objects  of  the  trust.  These  principles  are  incorporated  into  the 
revised  statutes.  (1  B.  S.  734,  §§  98,  99,  100.)  In  Dominick  v. 
Sayer,  (supra,)  the  subject  is  fully  examined  by  the  learned  judge 
(Duer)  himself,  one  of  the  revisers,  and  well  acquainted  with  the 
principles  on  which  the  revision  was  based. 

In  Hoey  v,  Kenney,  (25  Barh.  396,)  the  testator  gave  one  half 
of  his  estate  to  his  wife,  "  to  be  held  and  enjoyed  by  her  during 
her  natural  life,  and  by  her  to  be  divided  and  distributed  by  will 
among  my  [the  testator's]  relatives,  in  such  shares  as  she  may  see 
fit  and  deem  to  be  just."  The  widow  enjoyed  the  property  during 
her  life,  and  died  without  having  made  a  will.  It  was  held  that  as 
the  wife  did  not  exercise  the  power  of  distribution,  and  it  was  a  power 
in  trust  for  the  benefit  of  third  parties,  the  law  would  distribute  the 
property  equally  among  the  whole  class  among  whom  she  might 
have  distributed  it.  This,  it  was  said,  enabled  all  who  were  capable 
of  inheriting  at  her  death,  to  take  the  land,  although  they  were 
aliens  at  the  testator's  death.  Belonging  to  the  class  to  whom  the 
widow  might  have  given  it,  they  were  therefore  in  the  class  to  whom 
the  law  distributes  the  property  in  equal  shares.  {Dominick  v. 
Sayre,  supra.) 

When  a  power  in  trust  is  created  by  will,  and  the  testator  has 


POWER  TO  SELL  BY  IMPLICATION.  261 

omitted  to  designate  by  whom  the  power  is  to  be  exercised,  its  exe- 
cution devolves  on  the  supreme  court.  (1  R.  S.  734,  §  101.)  1  his 
is  merely  applving  to  powers  the  same  doctrine  which  we  have  be- 
fore seen  is  applicable  to  trusts.  Courts  of  equity,  independently 
of  any  statute  regulation,  never  permitted  a  trust  to  fail  for  the 
want  of  a  trustee;  and  this  principle  is  expressly  declared  and 
enacted  by  the  revised  statutes.     (1  B.  S.  730,  §  71.) 

Where  a  testator  directs  his  lands  to  be  sold  for  the  payment  ot 
his  debts,  or  for  the  payment  of  legacies,  and  appoints  executors,  the 
executors  have  the  power  to  sell,  although  they  are  not  named  as 
the  donees  of  the  power  otherwise  than  by  naming  them  as  execu- 
tors     The  reason  given  for  this  is  that  it  belongs  to  the  executor  to 
pay  the  debts  and  legacies ;  and  the  testator  having  directed  it  to 
be  done  by  means  of  a  sale  of  nis  land,  the  executor  should  have  the 
power  to  sell  as  incident  to  the  accomplishment  of  the  testator's  mam 
purpose.    {Per  Buggies,  in  Meakings  v.  Croiiuoell,  1  Seld.  139, 140.) 
It  matters  not  whether  the  testator  gives  money  or  directs  his 
laud  to  be  sold  and  the  proceeds  distributed ;   by  the  settled  princi- 
ples of  equitable  conversion,  it  is  money  that  the  testator  gives  and 
not  land,  and  the  executors  are  the  proper  persons  to  execute  the 
will,  though  not  expressly  ordered  to  do  it.     Thus,  when  the  testa- 
tor, by  his  will,  gave  to  his  wife,  for  life,  the  rents  of  certain  lands, 
and  directed  that  after  her  death  the  lands  should  be  sold,  and  the 
proceeds  divided  among  three  persons  named  in  the  will,  it  was  held 
that  this  was  a  gift  of  monetj  and  not  of  kinds,  and  was  valid,  though 
the  beneficiaries  were  aliens.     The  will  being  silent  as  to  the  per- 
sons who  should  sell  the  land,  it  was  further  held  that  power  was 
given  by  implication  to  the  executors  to  make  the  sale ;  and  that 
such  power  was  well  executed  by  a  deed  from  one  executor,  the  oth- 
ers not  having  qualified.     {Meakings  v.  OromiveU,  supra.) 

Had  the  executors  not  taken  the  power  to  sell  by  imjMcation,  in 
the  foregoing  case,  no  one  being  expressly  authorized  to  do  so,  it 
would  have  devolved  on  the  court,  under  the  lOlst  section,  before 
cited,  to  designate  the  person  by  whom  the  power  could  be  exer- 

There  are  several  cases  in  which  there  is  a  strict  analogy  between 
a  power  in  trust,  and  a  trust  in  its  appropriate  sense.  The  statute 
has,  therefore,  wisely  applied  to  powers  various  regulations  prescribed 
in  the  cases  of  trust.  {Compare  1  B.  S.  134,  §  102,  and  1  B.  S. 
130,  §§  66-71.) 


262  BY  WHAT  INSTRUMENT  EXECUTED. 

Hence  a  payment  in  good  faith  to  a  party  having  a  power  to  re- 
ceive it,  does  not  make  the  party  paying  responsible  for  the  applica- 
tion of  the  money.  When  the  purposes  for  which  the  power  was 
created  have  ceased,  the  power  itself  ceases  also.  On  the  death  of 
the  surviving  grantee  of  a  power,  the  power  does  not  descend  to  his 
heirs  nor  pass  to  his  personal  representatives,  but  if  unexecuted,  vests 
in  the  supreme  court,  and  is  to  be  executed  by  some  person  appointed 
for  that  purpose,  under  the  direction  of  the  court.  The  court  may 
accept  the  resignation  of  the  grantee  of  a  power,  under  the  like  reg- 
ulations as  are  prescribed  for  receiving  the  resignation  of  a  trustee ; 
the  court  may  remove  him  if  he  has  violated  or  threatened  to  violate 
his  duty,  or  if  he  is  insolvent  or  his  insolvency  is  apprehended,  or 
if  for  any  cause  he  is  deemed  an  unsuitable  person  to  execute  the 
power ;  and  appoint  a  new  grantee  of  the  power  in  place  of  the  one 
resigned  or  removed,  or  cause  the  power  to  be  executed  by  some  one 
of  the  officers  of  the  court  under  its  direction. 

We  have  seen  by  what  words,  and  by  what  instruments  a  power 
may  be  created;  it  remains  to  show  by  what  instruments  and  in 
what  manner  it  may  be  executed.  As  a  general  rule  it  may  be  laid 
down  that  when  the  instrument  creating  the  power  prescribes  the 
manner  of  its  execution,  that  manner  must  be  followed.  Thus  if 
the  power  be  created  by  will,  and  it  directs  a  sale  of  real  estate  at 
public  auction,  to  pay  off  legacies  as  they  become  due,  and  the  ex- 
ecutor sells  at  2^'i'i'vcite  sale  before  the  legacies  become  due,  the  sale 
is  void.     (Pendleton  v.  Fay,  2  Paige,  202.) 

Tlie  time  of  executing  a  trust  power  of  sale  depends  on  the  inten- 
tion of  the  grantor  of  the  power.  If  the  testator  devises  a  life  estate 
to  his  wife,  and  authorizes  his  trustees,  after  his  death,  to  sell 
the  land  and  distribute  the  proceeds  among  the  children  of  B.,  who 
is  then  living,  a  sale  before  the  death  of  the  wife  will  be  premature. 
(Per  Ch.  Wahoorth,  Egerton  v.  Conklin,  25  Wend.  224.) 

The  courts  have  been  very  strict  in  requiring  an  adherence  to  the 
terms  of  the  power.  The  revised  statutes  have  introduced  many 
wise  provisions  on  this  branch  of  our  jurisprudence.  Thus,  a  power 
vested  in  several  persons  must  be  executed  by  all,  unless  before  its 
execution  one  or  more  of  them  shall  have  died,  when  the  power  can 
be  executed  by  the  survivor.  (1  R.  8.  735,  §  112.  Ogden  v.  Smith, 
2  Paige,  198.  Taylor  v.  3Iorris,  1  Comst.  358.)  No  power  can 
be  executed  except  by  some  instrument  in  writing,  which  would  be 


FORMALITIES  OF  EXECUTION.  263 

sufficient  in  law  to  pass  the  estate  under  the  power,  if  the  persons 
executing  the  power  were  the  actual  owners.  (1  R.  S.  735,  §  113.) 
And  by  the  subsequent  section,  every  instrument  except  a  w^ill  in 
execution  of  a  power,  and  although  the  power  may  be  a  power  of 
revocation  only,  shall  be  deemed  a  conveyance  within  the  meaning, 
and  subject  to  the  provisions  of  that  part  of  the  revised  statutes 
relative  to  the  proof  and  recording  of  conveyances.  Where  a  power 
to  dispose  of  lands  is  confined  to  a  disposition  by  devise  or  will,  the 
instrument  of  execution  must  be  a  will  duly  executed  according  to 
the  provisions  relative  to  the  execution  and  proof  of  wills  of  real 
estate.  {Id.  §  115.)  Where  a  power  is  confined  to  a  disposition  by 
grant  it  cannot  be  executed  by  will,  although  the  disposition  is  not 
intended  to  take  effect  until  after  the  death  of  the  party  executing 
the  power.     {Id.  §  116.) 

A  power  to  sell  real  estate  does  not  authorize  the  giving  of  a  mort- 
gage. {The  Albany  Ins.  Co.  v.  Bay,  4  Comst.  9.  Coutant  v.  Ser- 
voss,  3  Barh.  128.) 

If  a  married  woman  execute  a  power  by  grant,  the  concurrence  of 
her  husband  as  a  party  is  not  requisite,  but  the  grant  is  not  a  valid 
execution  of  the  power  unless  it  be  acknowledged  by  her  on  a  private 
examination,  in  the  manner  prescribed  by  the  act  in  relation  to  the 
proof  and  recording  of  conveyances  by  married  women.  (1  R.  S. 
736,  §  117.     Id.  758,  §  10.) 

When  the  grantor  of  a  power  shall  have  directed  or  authorized 
it  to  be  executed  by  an  instrument,  not  sufficient  in  law  to  pass 
the  estate,  the  power  shall  not  be  void,  but  its  execution  shall  be 
governed  by  the  rules  before  prescribed  in  the  article.  (7c?.  736, 
§  118.) 

The  effect  of  this  enactment  is  to  refer  to  the  courts  the  execution 
of  a  power  when  the  instrument  pointed  out  by  the  grantor  of  the 
power  is  defective,  as  they  had  already  done  in  case  no  p)^'^son  was 
designated  in  the  will  creating  a  power,  by  whom  it  was  to  be  ex- 
ercised. 

It  sometimes  happens  that  the  grantor  of  a  power  directs  certain 
formalities  to  be  observed  in  the  execution  of  the  power,  in  addition 
to  those  which  would  be  sufficient  by  law  to  pass  the  estate.  In 
cases  of  that  kind  the  statute  provides  that  the  observance  of  such 
additional  formalities  shall  not  be  necessary  to  a  valid  execu,tion  of 
the  power.  {Id.  §  119.)  In  other  cases,  again,  the  conditions  an- 
nexed to  a  power  may  be  merely  nominal,  and  evince  no  intention 


264  INCIDENTS  OF  A  POWER. 

of  actual  benefit  to  the  party  to  whom  or  in  whose  favor  they  are  to 
be  performed.  In  such  cases,  those  conditions  may  be  wholly  dis- 
regarded in  the  execution  of  the  power.     {Id.  §  120.) 

The  intentions  of  the  grantor  of  a  power  as  to  the  mode,  time  and 
conditions  of  its  execution,  must  be  observed,  except  as  to  such 
matters  as  are  merely  nominal,  or  are  unnecessary  to  pass  the  estate, 
subject,  however,  to  the  power  of  the  supreme  court  to  supply  a  de- 
fective execution  of  the  power.  {Id.  §  120, 121.)  Wh^n  the  consent 
of  a  third  person  to  the  execution  of  a  power  is  requisite,  such  con- 
sent must  be  expressed  in  the  instrument  by  which  the  power  is  ex- 
ecuted, or  must  be  certified  in  writing  thereon.  In  the  first  case  the 
instrument  of  execution,  in  the  second  the  certificate,  must  be  signed 
by  the  party  whose  consent  is  required  ;  and  to  entitle  the  instru- 
ment to  be  recorded  such  instrument  must  be  duly  proved  or  ac- 
knowledged, in  the  same  manner  as  if  subscribed  to  a  conveyance  of 
land.  We  have  already  seen  that  if  the  consent  of  more  than  one 
person  is  required,  and  the  consent  of  one  or  more  is  not  given, 
either  by  death  or  otherwise,  the  power  cannot  be  executed.  {Id. 
§  122.  Barber  v.  Cary,  1  Kernan,  397,  ante.)  The  statute  has 
provided  that  no  disposition  by  virtue  of  a  power  shall  be  void,  in 
law  or  in  equity,  on  the  ground  that  it  is  more  extensive  than  was 
authorized  by  the  power ;  but  every  estate  or  interest  so  created,  so 
far  as  embraced  by  the  terms  of  the  power,  shall  be  valid.  (1  B.  S. 
737,  §  123.) 

The  omission  of  the  grantee  of  a  power  to  recite,  in  his  instrument 
of  conveyance,  the  power  by  virtue  of  which  it  is  made,  does  not 
render  it  invalid,  provided  he  had  a  right  to  convey,  under  his  power, 
what  he  professes  to  convey.     {Id.  §  124.) 

Instruments  in  execution  of  a  power  are  effected  by  parol,  both  at 
law  and  in  equity,  in  the  same  manner  as  conveyances  by  owners  or 
trustees.     {Id.  125.) 

Lands  embraced  in  a  power  to  devise  pass  by  a  will  purporting  to 
convey  all  the  real  property  of  the  testator,  unless  the  intent  that 
the  will  shall  not  operate  as  an  execution  of  the  power,  shall  appear 
expressly,  or  by  necessary  implication.  (7c?.  126.  Botler  v.  De~ 
Peyster,  25  Barb.  539.     Jackson  v.  Delancy,  13  Join.  537.) 

A  power  is  subject  to  the  incidents  of  other  property.  An  estate 
or  interest  given  by  a  parent  to  a  descendant,  by  virtue  of  a  benefi- 
cial power,  or  of  a  power  in  trust  with  a  right  of  selection,  is  deemed 
an  advancement  to  such  defendant,  within  the  provisions  of  the 


EXECUTION  OF  POWERS.  265 

chapter  of  the  title  to  real  property  by  descent.  Where  a  party  at- 
tempts to  suspend  the  alienation  of  property  by  an  instrument  in 
execution  of  a  power,  the  period  from  which  the  computation  is  made 
is  not  from  the  date  of  the  instrument,  but  from  the  time  of  the 
creation  of  the  power.     (1  B.  S.  737,  §§  127,  128.) 

No  estate  or  instrument  can  be  given  or  limited  to  any  person  by 
an  instrument  in  execution  of  a  power,  which  such  person  would  not 
have  been  capable  of  taking  under  the  instrument  by  which  the  power 
was  granted.     {Id.  §  129.) 

When  a  married  woman,  entitled  to  an  estate  in  fee,  is  authorized 
by  a  power  to  dispose  of  such  estate  during  her  marriage,  she  may 
by  virtue  of  such  power  create  any  estate  which  she  might  create  if 
unmarried.     (Id.  §  130.) 

A  married  woman  cannot  convey  her  real  estate  directly  to  her 
husband.  She  cannot,  therefore,  by  uniting  with  him  in  a  deed  of 
her  real  property  to  a  trustee,  reserve  a  valid  power  to  appoint  it  to 
his  use,  or  one  by  which  she  can,  by  a  last  will  and  testament,  devise 
to  him.  A  will  by  a  married  woman,  in  pursuance  and  in  execution 
of  a  power  so  reserved,  by  which  she  devises  her  real  estate  to  her 
husband,  is  inoperative  and  void.  During  coverture  she  possesses 
no  power  to  convey  by  deed  to  her  husband,  and  is  destitute  of  any 
testamentary  capacity.  Such  power  or  capacity  cannot  be  created 
over  lands  belonging  to  herself  in  fee,  by  virtue  of  any  agreement 
made,  during  coverture,  between  herself  and  her  husband.  It  can 
only  be  created  or  reserved  by  an  ante-nuptial  agreement.  Having 
power  to  grant  or  devise,  while  a/eme  sole,  she  may  by  such  an 
agreement  reserve  a  power  by  the  due  execution  of  which  she  may 
make  a  valid  will  in  favor  of  her  husband.  (Demprey  v.  TyleVy 
3  Sandf.  S.  C.  R.  73.) 

But  there  is  a  way,  aside  from  the  doctrine  of  powers,  or  trusts, 
by  which  a  married  woman  can  vest  her  real  estate  in  her  husband. 
She  can  unite  with  him  in  a  conveyance  of  it  to  a  third  person  in  fee. 
A  reconveyance  of  it  by  such  third  person  to  the  husband  in  fee,  will 
vest  the  title  in  him.     {Id.) 

With  regard  to  the  execution  of  powers,  it  is  held  that  there  must 
be  a  substantial  compliance  with  every  condition  required  to  pre- 
cede or  accompany  its  exercise.  {Per  Gardiner,  J.  in  Allen  v.  De 
Witt,  3  Comst.  278.  Chance  on  Powers,  172,  §  454.  1  H.  S.  737, 
§  121.  Bosehoom  v.  MosJier,  2  Denio,  61.)  This  rule  is  well  illus- 
trated in  Allen  v.  De  Witt,  {supra.)     A  testator  by  his  will  author- 


266  DEFECTIVE  EXECUTION  OF  POWERS. 

ized  his  executors  "  to  sell  his  real  and  personal  estate,  in  such  par- 
cels, at  such  times,  and  for  such  considerations  as  they  should  judge 
proper  for  the  purpose  of  discharging  his  debts  and  creating  funds 
for  the  support  of  his  family."  After  payment  of  debts,  he  directed 
the  avails  of  his  property  to  be  equally  divided  among  all  his  chil- 
dren. Before  the  testator's  debts  were  paid,  the  husband  of  one  of 
the  daughters  being  indebted  to  the  plaintiff,  procured  from  the  ex- 
ecutors a  conveyance  of  a  portion  of  the  real  estate  for  the  purpose 
of  enabling  him  to  mortgage  it  to  secure  the  debt.  Nothing  was 
paid  for  this  conveyance,  but  the  husband  agreed  to  disencumber 
the  land  by  paying  the  mortgages,  and  then  to  reconvey  to  the  ex- 
ecutors, or  in  default  thereof,  that  the  value  of  the  land  might  be 
charged  against  his  wife's  distributive  share  in  the  estate.  On  a  bill 
filed  to  foreclose  the  mortgage  given  by  the  husband  and  wife  ac- 
cording to  this  arrangement,  it  w^as  held  by  the  court  of  appeals  that 
the  conveyance  was  not  an  execution  of  the  power  contained  in  the 
will,  and  passed  no  title,  and  therefore  that  the  mortgage  was  not  a 
lien  upon  the  interests  of  the  testator's  other  heirs  in  the  premises. 
Under  such  a  power  it  seems  that  a  sale  of  the  real  estate  by  the 
executor,  for  the  purpose  of  distribution  among  the  testator's  chil- 
dren, could  not  be  made  until  after  the  debts  were  paid,  and  that 
the  sale  should  then  be  absolute  for  money,  or  funds  capable  of  dis- 
tribution according  to  the  will.) 

In  Rosehoom  v.  3fosher,  (supra,)  it  was  said  by  Bronson,  Ch.  J. 
that  when  a  power  is  given  by  will  to  executors  to  sell  lands,  in  case 
of  a  deficiency  of  personal  assets  to  pay  debts  and  legacies,  and  no 
estate  is  devised  to  the  executors,  the  purchaser,  to  sustain  his  title, 
must  show  the  fact  of  such  deficiency.  A  distinction  was  taken  in 
that  case  between  an  actual  deficiency,  and  the  opinion  of  the  ex- 
ecutor as  to  such  deficiency.  In  the  one  case  the  power  is  not  well 
executed,  unless  a  deficiency  be  shown ;  in  the  other,  where  the  tes- 
tator-has  authorized  the  sale  by  the  executor,  if  in  Ms  opinion  it 
shall  become  necessary,  for  the  payment  of  debts  and  legacies,  the 
necessity  need  not  be  shown.  The  fact  that  the  executor  makes  the 
sale  is  evidence  of  his  opinion  as  to  the  necessity,  and  the  convey- 
ance is  conclusive.     {Kellogg  v.  Slauson,  1  Kern.  302.) 

With  regard  to  the  defective  execution  of  a  power  in  trust,  in 
whole  or  in  part,  the  statute  enacts  that  its  proper  execution  may  be 
decreed  in  equity,  in  favor  of  the  persons  designated  as  the  objects  of 
the  trust ;  (1  J?,  S.  737,  §  131 ;)  and  by  the  subsequent  section,  the 


REVOCATION  OF  POWERS.  267 

same  remedy  is  given  in  favor  of  purchasers  claiming  under  a  de- 
fective conveyance  as  from  a  like  defective  conveyance  from  actual 
owners.  Courts  of  equity,  before  the  statute,  were  in  the  habit  of 
supplying  defects  in  the  execution  of  powers.  {Butcher  v.  Butcher, 
9  Ves.  394.)  It  is  a  well  established  branch  of  equity  jurispru- 
dence, and  rests  upon  its  jurisdiction,  to  relieve  against  mistakes. 
Such  relief  is  not  granted  in  favor  of  every  one,  nor  for  every 
species  of  mistake.  A  mistake  in  law  affords  no  ground  for  relief. 
{StovTj's  Eq.  J.  §§  113,  180  et  seq.)  And  there  must  be  clear  evi- 
dence of  the  existence  of  the  mistake  of  fact.  If  the  defect  be  in 
the  omission  of  some  condition  which  was  merely  nominal,  and 
evincing  no  intention  of  actual  benefit  to  any  of  the  parties,  pro- 
vision is  made  in  the  statute,  and  no  doubt  equity  would  have  re- 
lieved, independently  of  the  statute,  in  favor  of  the  proper  parties. 
( Willard's  Eq.  Jur.  84.) 

But  equity  cannot  relieve  against  the  consequences  of  failing  to 
comply  with  the  material  directions  of  the  party  creating  the  power. 
Therefore  when  the  power  prescribes  that  a  particular  instrument, 
•ds  a  deed,  is  required,  it  cannot  be  executed  by  will;  so  a  power 
which  is  expressly  required  to  be  executed  by  will,  cannot  be  execu- 
ted by  any  act  which  is  to  take  effect  in  the  lifetime  of  the  grantee 
of  the  power.  {Rcid  v.  Shergold,  10  Ves.  370.  Orahhe's  Law  of 
Real  Propertij,  p.  708,  &c.) 

The  power  to  sell  lands  contained  in  a  mortgage  or  other  convev- 
ance,  intended  to  secure  the  payment  of  money,  is  deemed  a  part  of 
the  security  and  vests  in  the  assignee  of  the  mortgage,  and  may  be 
executed  by  him,  or  by  any  person  entitled  to  the  money  secured 
by  it.  (1  B.  S.  738,  §  133.)  We  have  already  seen  that  such  a 
power  is  coupled  with  an  interest,  and  survives  the  mortgage,  and 
is  irrevocable.  {Bergen  v.  Bennet,  supra.  Knapp  v.  Alvord,  10 
Paige,  205.) 

With  regard  to  the  revocation  of  powers,  we  have  seen  that  every 
power,  beneficial  or  in  trust,  is  irrevocable,  unless  an  authority  to 
revoke  it  is  granted  or  reserved  in  the  instrument  creating  the  power. 
(1  B.  S.  735,  §  108.)  The  statute  contains  suitable  guards  against 
fraud,  by  treating  the  party  who  has  received  a  power  of  revocation 
as  absolute  owner  of  the  estate,  so  far  as  the  rights  of  creditors  and 
purchasers  are  concerned.     (1  B.  S.  733,  §  86.) 


268  POWERS  OF  ATTORNEY. 

It  has  been  held  that  when  a  person  takes  by  execution  of  a  power, 
he  takes  under  the  authority,  and  under  the  grantor  of  the  power, 
equally  as  if  the  power  and  the  instrument  executing  it  were  incor- 
porated in  one  deed.  {Doolittle  v.  Leiois,  7  John.  Ch.  45.  Litt.  169. 
Co.  Litt  113  a.  Cook  v.  Derchenfield,  2  Atk.  562,  567.)  The  rule  is 
the  same  whether  the  power  has  reference  to  real  or  personal  property. 

Powers  may  either  be  extinguished,  released  or  suspended,  ac- 
cording to  the  nature  of  the  power,  or  the  acts  of  the  grantee. 
{Grahhe's  Law  of  Real  Property,  721.) 

Section  II. 
Of  Poivers  of  Attorney  to  convey  Lands. 

The  provisions  of  the  article  in  the  revised  statutes  on  powers  which 
we  have  been  considering,  do  not  extend  to  a  simple  power  of  at- 
torney to  convey  lands  in  the  name  and  for  the  benefit  of  the  owner. 
(1  R.  S.  738,  §  134.)  It  was  deemed  sufficient  to  let  that  class  of 
cases  rest  upon  the  common  law. 

A  power  of  attorney  is  an  instrument  in  writing  under  seal,  by 
which  the  party  executing  it  appoints  another  to  be  his  attorney, 
and  empowers  such  attorney  to  act  for  him,  either  generally  in  all 
matters  or  business,  or  especially  to  do  some  specified  act  or  acts, 
in  his  name  and  behalf.     (^S'ee  the  icord  in  Ruri^iU's  Laiu.  Did.) 

If  it  be  intended  that  the  attorney  shall  make  a  complete  convey- 
ance of  real  estate,  or  any  interest  therein,  which  by  law  is  required  to 
be  by  deed,  the  power  of  attorney  must  be  executed  by  the  princi- 
pal under  hand  and  seal.  The  instrument  conferring  the  authority 
must  be  executed  with  the  same  solemnity  as  the  instrument  which 
the  attorney  is  authorized  to  execute  in  the  name  of  his  principal. 
[Co.  Litt.  52  a.  Blood  v.  Goodrich,  9  Wend.  68.)  An  authority 
to  execute  a  deed,  must  be  itself  a  deed,  or  in  other  words  an  in- 
strument under  seal.     {Lawrence  v.  Taylor,  5  Hill,  113.) 

An  agent  may  be  orally  empowered  to  contract  to  sell  land,  for 
the  contract  may  be  without  seal.  {Champlin  v.  Parish,  11  Paige, 
405.  Mc  Whorter  v.  BIcMahan,  10  Pciige  386.  Lawrence  v.  Tay- 
lor, supra.) 

As  a  general  rule  it  may  be  said  that  any  party  having  the  com- 
plete ownership  of  an  estate,  has  the  jus  disponendi,  and  unless 
laboring  under  some  legal  disability,  may  convey  the  same  in  person 
by  deed,  or  authorize  another  by  power  of  attorney  under  seal,  to 


REVOCATION  OF  POWER.  269 

convey  it  for  him.  Married  women,  infants,  lunatics  and  other  per- 
sons not  sui  juris,  are  not  in  general  capable  of  appointing  an 
attorney.     {Per  Bronson,  Snyder  v.  Sponahle,  1  Hill,  567.) 

If  a  party  can  himself  execute  a  deed  of  an  estate,  it  would  seem 
on  principle  that  he  might  authorize  another  to  do  it.  As  a  feme 
covert  under  the  act  of  1849  {L.  of  1849,  p.  528)  can  hold  to  her 
sole  and  separate  use  real  and  personal  property,  and  can  convey  and 
devise  the  same  "  in  the  same  manner  and  with  the  like  effect  as  if 
she  were  unmarried,"  and  as  her  deed  thereof  does  not  require  to  he 
acknowledged  private  and  apart  from  her  husband,  {Blood  v.  Hum- 
phrey,  17  Barb.  660,)  no  reason  is  perceived  why  she  may  not  execute 
a  power  of  attorney  under  seal  and  empower  such  attorney  to  convey 
the  same  in  her  name.  The  statute  in  effect  removes  the  disability 
of  coverture  with  respect  to  the  disposal  of  her  separate  property, 
without  prescribing  any  restriction  as  to  the  mode. 

The  acts  of  1848  and  1849,  probably  relate  to  married  women, 
inhabitants  of  this  state.  The  act  of  1835,  chapter  275,  makes  a 
separate  provision  with  respect  to  non-residents.  It  provides  that 
when  such  married  woman  shall  unite  with  her  husband  in  execut- 
ing any  power  of  attorney  for  the  conveyance  of  real  estate  situa- 
ted in  this  state,  the  conveyance  executed  in  virtue  of  such  power 
shall  have  the  same  force  and  effect  as  if  executed  by  such  married 
woman,  in  her  own  proper  person  ;  provided  that  the  execution  of 
such  power  of  attorney  by  such  married  woman  shall  first  have  been 
proved  or  acknowledged,  according  to  the  provisions  of  the  revised 
statutes  in  relation  to  conveyances  executed  by  married  women  resid- 
ing out  of  this  state. 

Before  the  power  has  been  executed,  the  principal  has  the  right 
to  revoke  it,  except  when  the  power  is  coupled  with  an  interest,  as 
it  has  been  declared  in  the  instrument  itself  to  be  irrevocable.  The 
power  of  sale  in  a  mortgage,  it  has  been  seen,  is  a  part  of  the  secu- 
rity itself,  and  affords  an  instance  of  irrevocable  powers.  When 
a  power  of  attorney  to  sell  and  convey  lands  for  another  has  been 
recorded,  an  instrument  under  seal  revoking  it,  is  not  deemed  effect- 
ual unless  the  instrument  containing  such  revocation  be  recorded  in 
the  same  ofl&ce  in  which  the  instrument  containing  the  power  was 
recorded.  (1  B.  S.  763,  §  41.)  Notice,  or  a  copy  of  the  instru- 
ment of  revocation,  should  also  be  served  on  the  attorney. 

An  authority  must  be  strictly  pursued.  A  power  of  attorney  au- 
thorizing the  attorney  to  sell  and  execute  conveyances  and  assur- 


270  POWER  OP  SUBSTITUTION. 

ances  in  the  law  of  the  lands  sold,  does  not  authorize  the  attorney  to 
bind  his  principal  by  any  covenants.  Any  act  varying  from  the 
terms  of  this  power  is  void.  (Nixon  v.  Hyserott,  5  John.  58. 
Gibson  y.  Cold,  7  id.  390.) 

An  attorney  has  no  right  to  delegate  his  authority  to  any  other 
person,  unless  the  instrument  contains  a  power  of  substitution. 
The  principle  is  delegata  pofestas  non  potest  delegari.  (Broom's 
Maxims,  QQ5.)  The  party  to  whom  the  authority  is  given  must  ex- 
ecute it  himself,  and  he  cannot  delegate  it  to  another.  The  prin- 
cipal in  general  employs  the  agent  from  the  confidence  he  reposes  in 
him,  and  it  would  be  a  violation  of  the  trust  to  transfer  the  author- 
ity to  another  without  the  express  consent  of  the  party  who  created 
the  power.  The  principle  has  a  wide  application  to  the  doctrine  of 
agency,  but  we  are  discussing  it  only  with  reference  to  powers  of 
attorney  to  sell  land. 

It  is  usual  in  powers  of  attorney  of  this  kind,  if  the  principal  so 
pleases,  to  insert  in  the  power  a  clause  authorizing  the  attorney  to 
substitute  one  or  more  attorneys  under  him  to  do  the  act  and  to  re- 
tain the  power  of  revocation. 

If  the  authority  be  given  to  two  or  more,  it  cannot  be  executed 
by  one  alone.  All  must  join.  An  authority  to  three  jointly  is  not 
•well  executed  by  two.  [Co.  Litt.  181  h.  Green  v.  3Iiller,  6  John. 
39.  Franklin  v.  Osgood,  14  id.  553.  Sinclair  v.  Jackson,  8  Coiu- 
en,  543.)  This  is  the  undisputed  rule  with  respect  to  private  mat- 
ters between  individuals.  A  different  rule  obtains  in  matters  of 
public  concern.  To  obviate  the  inconvenience  of  this  rule  it  is  j)ro- 
vided  that  the  surviving  executor  or  administrator,  when  the  grant 
has  been  made  to  several,  may  execute  the  power.  But  the  authori- 
ty may  be  so  given  that  the  surviving  attorney  may  act.  It  may 
be  given  to  several  jointly  or  severally,  in  which  case  either  one 
could  execute  the  authority  ;  and  if  it  be  given  to  them  or  the  sur- 
vivors or  survivor  of  them,  the  death  of  one  or  more,  so  long  as  one 
remains,  will  not  end  the  power. 

We  have  said  the  party  making  the  power  of  attorney  may,  at 
any  time  before  it  is  executed,  revoke  it.  {See  ante,  p.  269.)  But 
there  are  other  acts  which  will  put  an  end  to  the  authority.  It 
must  be  executed  during  the  life  of  the  party  creating  it,  and  there- 
fore his  death  determines  the  power.  (jBac.  Abr.  tit.  Authority,  U.) 
This  applies  only  to  a  naked  power.  A  power  coupled  with  an 
interest  is  not  revoked  by  the  death  of  the  grantor  of  the  power.  (7c?.) 


MANNER  OF  EXECUTION.  271 

With  regard  to  the  manner  in  which  the  power  mnst  he  executed, 
it  may  he  in  general  remarked  that  it  must  be  executed  in  the  name 
of  the  principal.  If  the  attorney  affix  only  his  own  name  and  seal, 
the  grant  is  void,  although  in  the  body  of  the  instrument  it  be  stated 
that  it  is  the  agreement  of  the  principal  by  his  attorney.  {Toivn- 
send  V.  Corning,  23  Wend.  435.  Same  v.  Huhbard,  4  EiU,  351. 
White  V.  Skinner,  13  John.  307.)  No  particular  form  of  words  is 
necessary  to  be  observed  by  the  attorney  in  executing  the  instru- 
ment, provided  the  words  used  import  the  requisite  facts.  It  should 
appear  upon  the  face  of  the  instrument  that  it  was  intended  to  bo 
executed  as  the  deed  of  the  principal,  and  that  the  seal  affixed  to 
the  instrument  is  his  seal,  and  not  the  seal  of  the  attorney  merely. 
{Wilks  V.  Back,  2  East,  142.  Toiunsend  v.  Euhhard,  supra.) 
A;id  when  the  deed  is  executed  for  several  parties,  it  is  said  not  to 
be  necessary  to  affix  a  separate  and  distinct  seal  for  each,  if  it  ap- 
pear that  the  seal  affixed  was  intended  to  be  adopted  as  the  seal  of 
each  of  the  parties.  {Id.)  It  will  be  less  likely  to  lead  to  disputes, 
if  approved  forms  be  used  and  a  seal  affixed  to  each  name. 

A  power  of  attorney  to  convey  lands  should  be  duly  acknowledged 
or  proved  in  the  same  manner  that  conveyances  of  real  estate  are  re- 
quired to  be  acknowledged  or  proved,  and  that  it  be  in  all  cases  re- 
corded in  the  county  where  the  lands  are  situated.  It  should  be 
referred  to  in  the  deed  executed  in  pursuance  of  it  by  some  intelligible 
description,  if  it  be  not  in  substance  set  out  or  recited  at  large.  As 
it  will  form  a  part  of  the  grantee's  title  to  the  land,  care  should  be 
taken  that  it,  as  well  as  the  deed,  should  be  duly  proved  and  acknowl- 
edged and  recorded  in  the  proper  county. 

All  powers  of  attorney  receive  a  strict  interpretation,  and  the 
authority  is  never  extended  beyond  that  which  is  given  in  terms,  or 
is  absolutely  necessary  for  carrying  the  authority  into  effect.  {Sand- 
ford  V.  Eandij,  23  Wend.  260.     Nixon  v.  Eijserott,  supra.) 

A  party  dealing  with  an  agent  is  chargeable  with  notice  of  the 
contents  of  the  power  under  which  he  acts.  (  Warwick  v.  Warivick, 
3  Atk  294.     Willard's  Eq.  Juris.  250,  608.) 


272  MARRIAGE  SETTLEMENTS. 


CHAPTER  III. 

OF   MAREIAGB   SETTLEMENTS. 

Section  I. 
Of  the  origin,  policy  and  effect  of  Marriage  Settlements. 

The  doctrine  of  uses  and  trusts  and  powers,  of  which  we  have 
treated  in  the  preceding  chapters,  is  the  foundation  of  marriage 
settlements.  These,  in  England,  are  the  most  voluminous  and  com- 
plicated instruments  prepared  by  the  conveyancer.  They  are  of  rare 
occurrence  in  this  country.  Their  general  object  is  to  provide  a  life 
estate  for  the  wife  beyond  the  control  of  her  husband,  and  to  secure 
a  provision  for  the  issue  of  the  marriage,  which  neither  the  parents, 
or  the  creditors  of  the  husband,  can  defeat. 

The  subject,  in  most  of  its  aspects,  belongs  to  treatises  on  equity 
jurisprudence,  or  to  such  as  are  specially  devoted  to  the  law  of  hus- 
band and  wife,  or  the  rights  of  married  women.  But  as  it  calls  for 
the  services  of  the  conveyancer,  it  falls,  to  a  certain  extent,  appro- 
priately within  the  subject  of  the  present  treatise. 

By  the  common  law,  the  personal  property  of  the  wife  becomes, 
by  the  act  of  marriage,  absolutely  the  property  of  the  husband. 
This  embraces  not  only  what  she  had  at  the  time  of  the  marriage, 
but  wliat  she  afterwards  acquires  by  gift,  or  grant,  or  bequest,  or 
from  her  own  earnings.  Her  personal  property  consists  of  three 
kinds,  viz  :  chattels  personal,  choses  in  action,  and  chattels  real. 
Her  chattels  personal  are  absolutely,  by  the  common  law,  vested  in 
the  husband.  He  requires  the  aid  of  no  court  to  establish  his  claim. 
The  husband  is  entitled  to  reduce  her  choses  in  action  to  his  pos- 
session during  the  lifetime  of  the  wife ;  and  they  then  become  his 
absolutely.  If  he  dies  without  doing  so,  they  become  hers  by  surviv- 
ership.  (WhitaTcer  v.  Whitaher,  6  John.  112.)  But  if  she  dies  be- 
fore he  has  reduced  them  to  possession,  he  takes  them  only  as  her 
.  administrator,  and  not  by  survivorship ;  and  he  is  liable  for  her 
debts,  after  her  death,  to  the  extent  of  the  assets  which  he  receives 
from  her.  {L.  of  1853,  ch.  576,  §  1.)  The  chattels  real  of  the  wife, 
such  as  terms  for  years,  whether  legal  or  equitable  interests,  belong 
to  the  husband  in  a  qualified  manner.     He  may  transfer  them  in  his 


POLICY  OF  MARRIAGE  SETTLEilENTS.  273 

lifetime,  and  thus  become  entitled  absolutely  to  the  avails  of  them. 
But  he  cannot  dispose  of  them  by  will,  and  if  he  foils  to  dispose  of 
them  while  he  lives,  they  survive  on  his  death  to  his  wife.  He  has, 
by  the  common  law,  the  same  right  to  her  chattels  real  which  accrue 
to  her  during  the  coverture  ;  and  he  is  entitled  to  the  rents  and  prof- 
its of  her  real  estate  during  the  coverture.  As  a  compensation  for 
these  benefits,  the  law  throws  upon  the  husband  the  burden  of  the 
wife's  debts,  which  were  incurred  while  she  was  sole,  and  makes  him 
liable  for  them  at  any  time  during  the  continuance  of  the  marriage, 
to  the  extent  of  her  separate  estate  and  property.  {Clancy,  2-10. 
Co.  Liu.  351  a.  Bac.  Ah.  tit.  Bar.  and  Feme,  G.  Willard's  Eq. 
Jut.  473,  474.     L.  of  1853,  p.  1057,  §§  1,  2.) 

It  is  the  design  of  marriage  settlements  to  escape  from  the  extreme 
rigor  of  the  common  law  rules,  and  to  remove  some  of  the  disabili- 
ties which  the  condition  of  the  marriage  state  imposes.  The  prin- 
ciples and  practice  which  the  court  of  chancery  adopted  in  further- 
ance of  these  objects,  were  mainly  derived  from  the  civil  law.  In 
the  first  case,  which  was  brought  before  our  highest  court,  in  which 
the  power  of  a  married  woman  having  separate  property,  to  dispose 
of  it  at  her  will  and  pleasure,  when  not  expressly  restrained  in  the 
mode  of  exercising  that  will,  the  judges  took  occasion  to  express 
their  opinions  as  to  the  policy  of  the  law  in  this  respect.  Chief  Jus- 
tice Spencer  said  :  "  I  confess  that  my  partialities  in  favor  of  mar- 
riage settlements  are  not  so  strong  as  to  induce  any  desire  to  see  the 
law  altered.  Generally  speaking,  the  rules  of  the  common  law, 
which  give  to  the  husband  all  the  wife's  personal  property,  and  the 
rents  and  profits  of  her  real  estate  during  coverture,  are  better  calcu- 
lated, in  my  judgment,  to  secure  domestic  tranquillity  and  happi- 
ness, than  settlements  securing  to  the  wife  a  property  separate  from 
and  independent  of  the  control  of  the  husband.  An  improvident 
and  dissipated  husband  may  squander  his  wife's  property,  and  re- 
duce both  of  them  to  penury  and  distress.  On  the  other  hand,  the 
possession  by  the  wife  of  property  independent  of  and  beyond  the 
control  of  the  husband,  would  be  likely  to  produce  perpetual  feuds 
and  contention.  Marriage  is  a  union  of  persons  and  interests,  yro 
lono  et  malo,  and  the  ancient  provisions  of  the  common  law  show' 
forth  in  our  own  country  decisive  proofs  of  its  benign  and  salutary 
influence."  (Jaques  v.  Methodist  Epis.  Church,  17  John.  580.) 
The  language  of  Justice  Piatt  is  no  less  explicit :  "  I  lament,"  says 
the  learned  judge,  "  the  complicated  and  artificial  anomalies  in  the 
Will.— is 


274  ACTS  OF  1848  AND  1849. 

relations  of  domestic  life  which  have  grown,  and  are  still  growing, 
out  of  the  practice  of  marriage  settlements.  They  give  to  the  wife 
the  amphibious  character  of  a /ewe  covert  and  2,  feme  sole.  I  view 
it  as  an  adulteration  of  that  holy  union  ;  as  a  divorce  pro  tanto  of 
the  marriage  contract.  A  wife  in  the  independent  enjoyment  of  her 
separate  estate,  armed  with  distrust  of  her  husband,  and  shutting 
out  his  affections  and  confidence,  by  refusing  to  give  her  own  in  mu- 
tual exchange,  is  an  object  of  compassion  and  disgust.  Legal  chas- 
tity cannot  be  denied  to  her ;  but  there  is  danger  that  the  sacred 
institution  of  marriage  may  degenerate  into  mere  form.  It  is  some- 
times, in  practice,  little  more  than  legalized  prostitution  ;  and  the 
parties  seem  to  have  no  higher  objects  than  sexual  intercourse,  and 
the  sanction  of  legitimacy  for  their  offspring.  If,  in  the  rapid  pro- 
gress of  refinement  in  civilization,  it  shall  be  thought  expedient  to 
go  one  step  farther,  and  to  allow  the  wife,  by  ante-nuptial  contract 
to  stipulate  for  an  exemption  from  personal  control  over  her  by  the 
husband,  then  the  quasi  divorce  would  be  extended  one  degree  fur- 
ther, so  as  to  confer  on  her  the  independent  enjoyment  of  the  rights 
and  privileges  of  a  kept  mistress.     But  she  would  have  little  claim, 

indeed,  to  the  endearing  appellation  and  character  of  a  wife 

If  matrimony  is  not  safe  and  desirable,  without  these  trammels,  and 
fences,  and  reservations  and  restrictions,  I  say  marry  not  at  all." 
{Id.  583.) 

But  although  the  policy  of  marriage  settlements  was  thus  early 
questioned  by  learned  judges,  they  were  assumed  by  the  legislature, 
in  making  the  revision  of  the  statutes  in  1830,  as  an  existing  mode 
t)f  providing  for  the  necessities  of  families,  and  suitable  regulations 
were  prescribed  to  guard  them  from  abuse.  {See  the  article  concern" 
ing  Uses  and  Trusts,  1  i?.  S.  727,  and  the  article  concerning  Pov)- 
ers,  Id.  732,  passim.)  And  the  acts  of  1848  and  1849  for  the 
more  effectual  protection  of  the  property  of  married  women,  {L.  of 
1848,  p.  307  ;  L.  of  1849,  p.  528,)  expressly  enact  that  all  contracts 
made  between  persons  in  contemplation  of  marriage  shall  remain  iu 
full  force  after  such  marriage  takes  place.  This  was  obviously  in- 
serted to  prevent  any  implication  being  drawn  from  those  acts 
against  the  legality  of  ante-nuptial  agreements,  which  had  already 
been  made.  We  have  already,  in  another  connection,  alluded  to 
these  statutes.  It  is  believed  that  one  of  the  objects  which  they 
were  intended  to  accomplish  was  to  diminish  the  necessity  for  mar- 
riage settlements  in  future.     By  permitting  a  married  female  to 


POWER  TO  MAKE  WILLS.  275 

take  by  inheritance,  or  by  gift,  grant,  devise  or  bequest,  from  any 
person  other  than  her  husband,  and  hold  to  her  sole  and  separate 
use,  and  to  convey  and  devise  real  and  personal  property,  and  any 
interest  or  estate  therein,  and  the  rents,  issues  and  profits  thereof,  in 
the  same  manner  and  with  the  same  effect  as  if  she  were  unmarried, 
and  by  declaring  that  such  property  shall  not  be  subject  to  the  dis- 
posal of  her  husband,  nor  be  liable  for  his  debts,  the  legislature  has 
given  to  a  feme  covert,  with  respect  to  her  property  so  acquired,  as 
much  power  of  disposition  as  is  usually  contained  in  marriage  set- 
tlements, and  in  many  respects  more.  They  have  left  the  power  of 
disposition  unfettered  by  any  restriction,  save  such  as  is  applicable 
to  all  persons.  In  furtherance  of  the  same  policy,  the  second  sec- 
tion of  the  act  of  1849  has  prescribed  a  way  by  which  a  married 
woman  whose  property  is  held  by  a  trustee,  may  be  put  in  the  bene- 
ficial enjojinent  and  control  of  all  or  any  portion  of  such  property, 
for  her  sole  and  separate  use  and  benefit.  Her  trustee  is  required 
to  convey  to  her  all  such  property  held  in  trust,  on  the  written  request 
of  such  married  woman,  accompanied  by  a  certificate  of  a  justice  of 
the  supreme  court  that  he  has  examined  the  condition  and  situation 
of  the  property,  and  made  due  inquiry  into  the  capacity  of  such  mar- 
ried woman  to  manage  and  control  the  same.  The  judge  will  not 
give  such  certificate  unless  he  finds  on  such  examination,  that  the 
married  woman  has  sufficient  capacity  to  manage  and  control  her 
property.  He  has  nothing  to  do  with  the  policy  of  the  law  ;  and 
the  trustee  has  no  discretion  to  refuse  to  convey  to  the  married  female 
the  trust  property,  on  being  served  with  the  written  request  of  the  fe- 
male and  certificate  of  the  judge.  "  May"  evidently  means  "  must," 
in  this  connection. 

The  operation  of  this  law  works  a  qualified  repeal  of  the  excep- 
tion in  the  statutes  of  wills,  which  excluded  married  women  from 
the  power  of  devising  their  real  estate  by  last  will  and  testament, 
(2  R.  S.  57.)  This  exception  when  inserted  in  the  original  statute 
of  wills  in  the  reign  of  Henry  the  8th,  may  have  been  dictated  by 
wisdom  and  sound  policy.  But  since  then,  and  especially  in  this 
country,  there  has  been  a  revolution  in  the  tenure  of  real  property  ; 
and  the  social  position  and  general  education  and  intelligence  of 
females  have  placed  them  on  a  level  with  the  other  sex,  and  removed 
the  reasons  on  which  the  exception  was  based.  The  repeal  of  it  by 
the  act  of  1849,  extends  only  to  the  property  specified  in  the  third 
section,  and  is  not  made  universal.     Nor  does  that  act  confer  upon 


276  LAW  OF  1860. 

a  married  woman  her  own  earnings,  nor  change  the  principle  of  the 
common  law,  which  vests,  on  the  marriage,  the  personal  estate  of 
the  wife  in  the  husband.  It  applies  only  to  such  property  as  she 
acquires  after  and  during  the  marriage,  by  inheritance  or  by  gift, 
grant,  devise  or  bequest  from  any  person  other  than  her  husband. 
The  property  which  she  owned  before  the  marriage,  and  that  which 
she  acquires  by  her  own  earnings,  were  left  by  the  act  of  1849,  to 
the  operation  of  the  common  law. 

The  act  of  1860,  ch.  90,  [L.  0/I86O,  p.  157,)  goes  further.  It 
provides  that  the  property,  both  real  and  personal,  which  any  mar- 
ried woman,  at  the  time  of  the  passing  of  that  law,  owned  as  her 
sole  and  separate  property ;  that  which  comes  to  her  by  descent,  de- 
vise, bequest,  gift  or  grant ;  that  which  she  acquires  hy  her  trade, 
husiness,  labor  or  services  carried  on  or  performed  on  her  sole  and 
separate  account;  that  which  a  woman,  married  in  this  state,  oivns 
at  the  time  of  her  marriage,  and  the  rents,  issues  and  proceeds  of 
all  such  property,  shall,  notwithstanding  her  marriage,  be  and  remain 
her  sole  and  separate  property,  and  may  be  used,  collected  and  in- 
vested by  her  in  her  own  name,  and  shall  not  be  subject  to  the  inter- 
ference or  control  of  her  husband,  or  liable  for  his  debts,  except  such 
debts  as  may  have  been  contracted  for  the  support  of  herself  or  her 
children,  by  her  as  his  agent.  This  statute  abrogates  that  rule  of 
the  common  law  which  vests,  on  the  marriage,  the  personal  estate 
of  the  wife  in  the  husband ;  and  that  other  rule  which  gave  to  the 
husband  the  earnings  of  the  wife  during  the  coverture.  It  also  so 
far  enlarges  the  provisions  of  the  act  of  1849,  as  to  give  to  the  mar- 
ried female  the  same  control  and  interest  in  the  real  estate  owned 
by  her  at  the  time  of  the  marriage,  and  the  rents,  issues  and  proceeds 
of  all  such  property  as,  by  the  act  of  1849,  was  given  to  her  in 
respect  to  property  obtained  by  her  by  inheritance,  or  by  gift,  grant, 
devise  or  bequest,  from  any  person  other  than  by  her  husband. 

nDhe  law  of  1860,  in  some  respects,  departs  from  the  principles  of 
the  act  of  1849.  While  under  the  former  act  a  married  woman  may 
bargain,  sell,  assign  and  transfer  her  separate  personal  property,  and 
carry  on  any  trade  or  business,  and  perform  any  labor  or  services 
on  her  sole  and  separate  account,  and  her  earnings  from  her  trade 
or  business,  labor  or  services,  are  her  sole  and  separate  property, 
and  may  be  used  and  invested  by  her  in  her  own  name,  a  different 
rule  prevails  with  respect  to  her  control  over  her  real  property. 
Under  the  act  of  1849,  she  was  left  under  no  greater  restraint  in 


MARRIED  WOMAN  CANNOT  COVENANT.  277 

this  respect  over  her  property  mentioned  in  that  act,  than  an  unmar- 
ried woman.  But  the  act  of  1860,  while  it  permits  a  married  wo- 
man, possessed  of  real  estate  as  her  separate  property,  to  bargain, 
sell  and  convey  such  property,  and  enter  into  any  contract  in  refer- 
ence to  the  same,  provides  that  no  such  conveyance  or  contract  shall 
be  valid,  without  the  assent  in  writing  of  her  husband,  except  in  the 
cases  mentioned  in  subsequent  sections.  Those  cases  are  when  the 
married  female  cannot  procure  the  assent  of  her  husband,  in  conse- 
quence of  his  refusal,  absence,  insanity  or  other  disability,  she  may 
still  make  such  conveyance  or  contract,  without  the  assent  of  her  hus- 
band, if  she  can  procure  leave  to  make  such  contract  from  the  county 
court  of  the  county  where  she  shall  at  the  time  reside.  The  statute 
points  out  the  mode  of  making  this  application,  and  prescribes  the 
circumstances  under  which  the  court  is  authorized  to  allow  such 
married  woman  to  sell  and  convey  her  real  estate,  or  to  contract  in 
regard  thereto,  without  the  assent  of  her  husband :  they  are,  1,  if 
the  husband  has  willfully  abandoned  his  wife,  and  lives  separate 
and  apart  from  her ;  2,  if  he  is  insane,  or  imprisoned  as  a  convict 
in  any  state  prison  ;  3,  if  he  is  an  habitual  drunkard ;  4,  if  he 
is  in  any  way  disabled  from  making  a  contract ;  or  5,  if  he  refuses 
to  give  his  consent,  without  good  cause  therefor.  If  either  of  these 
circumstances  concur,  the  court  is  required  to  cause  an  order  to  be  en- 
tered in  its  minutes,  authorizing  such  married  woman  to  sell  and  con- 
vey her  real  estate,  or  contract  in  regard  thereto  without  the  assent 
of  her  husband,  with  the  same  effect  as  though  such  conveyance  or 
contract  had  been  made  with  his  assent.  {L.  o/'1860,^.  158,  §§  5,  6.) 
A  deed  executed  by  a  married  woman  under  the  acts  of  1849  or 
1860,  does  not  require  for  its  validity,  that  her  husband  should  be 
united  with  her  in  the  instrument.  It  should  however  be  acknowl- 
edged by  her  on  a  private  examination,  apart  from  her  husband, 
under  the  statute.  {Gillett  v.  Stanley^  1  Hill^  121.)  She  can  pass 
her  title  by  such  deed,  but  neither  of  these  statutes  has  relieved 
her  from  the  inability  to  make  covenants  for  title  in  such  deed. 
Though  she  joins  with  her  husband  in  a  deed  in  which  there  are  cov- 
enants for  title,  the  husband  alone  is  liable  for  a  breach  of  them, 
and  as  to  th'e  wife,  they  are  void.  (  WMtheck  v.  Cook,  15  John.  483. 
Jackson  V.  Vanderhey den,  17  id.  107.)  Nor  can  she  be  estopped  by 
her  covenant  of  warranty  from  claiming  a  subsequently  acquired 
estate  in  the  land  conveyed  by  her.  {Teal  v.  Woodioorth,  3  Paige, 
470.     Carpenter  v.  Schermerhorn,  2  Barh.  Ch.  H.  314.)     But  she  ia 


278  HER  RIGHT  TO  BRING  ACTIONS. 

as  effectually  concluded,  as  any  other  grantor,  from  denying  any  ad- 
mitted fact  which.is  essential  to  the  effect  and  operation  of  the  deed. 
{Grant  v.  Toivnsend,  2  Hill,  554.) 

That  these  statutes  were  intended  to  obviate  the  necessity  of  a 
marriage  settlement  is  farther  evident  by  the  provision  contained 
in  the  act  of  1860,  removing  the  disability  of  coverture  in  respect  to 
actions.  It  is  expressly  enacted  that  a  married  woman  may,  while 
married,  sue  and  be  sued  in  all  matters  having  relation  to  her 
property,  which  may  be  her  sole  and  separate  property,  or  which 
may  after  the  passing  of  the  act,  come  to  her  by  descent,  devise,  be- 
quest, or  the  gift  of  any  person  except  her  husband,  in  the  same 
manner  as  if  she  were  sole.  She  is  also  allowed  to  bring,  and  main- 
tain an  action  in  her  own  name,  for  damages  against  any  person  or 
body  corporate,  for  any  injury  to  her  person  or  character,  the  same 
as  if  she  were  sole  ;  and  the  money  received  upon  the  settlement  of 
any  such  action,  or  recovered  upon  a  judgment  is  declared  to  be 
her  sole  and  separate  property.     {L.  of  1860,  p.  158,  §  7.) 

The  foregoing  enactments  are  innovations  of  the  common  law. 
They  give  to  a  married  woman,  as  far  as  they  go,  the  same  privileges 
which  are  enjoyed  by  the  unmarried.  If  the  statute  had  stopped 
here,  it  would  have  still  left  the  husband  liable  upon  such  contracts 
of  the  wife  as  she  was  permitted  to  make.  But  a  subsequent  sec- 
tion provides  that  no  bargain  or  contract  made  by  any  married 
woman,  in  respect  to  her  sole  and  separate  property,  or  any  property 
which  may  thereafter  come  to  her  by  descent,  devise,  bequest  or  gift 
of  any  person  except  her  husband,  and  no  bargain  or  cDntract  en- 
tered into  by  any  married  woman,  in  or  about  the  carrying  on  of  any 
trade  or  business  under  the  statutes  of  this  state,  shall  be  binding 
upon  her  husband,  or  render  him  or  his  property  in  any  way  liable 
therefor.     {L.  of  1860,  p.  159,  §  8.) 

The  provision  of  the  common  law  which  required  the  husband  to 
join  and  be  joined  with  the  wife  in  all  actions  in  which  she  was  the 
meritorious  cause  of  action,  seems  thus  to  be  modified.  For  though 
the  statute  does  not  in  terms,  say  that  the  husband  shall  not  be 
joined  in  an  action  against  his  wife  in  respect  to  the  matters  con- 
tained in  that  section,  it  seems  to  be  clearly  unnecessary  to  make 
him  a  party  to  an  action  in  which  no  liability  attaches  to  him  or 
his  property.  If  he  is  neither  entitled  to  the  fruits  of  the  recovery 
in  the  one  case,  nor  liable  to  the  consequences  of  a  defeat  in  the 


TRUSTEE  IN  MARRIAGE  SETTLEMENT.  279 

other,  the  principles  on  which  the  common  law  required  him  to 
join  or  he  joined  no  longer  remain. 

How  for  the  principle  of  allowing  a  married  M'oman  to  sue  and  to 
be  sued  with  respect  to  her  own  property,  as  if  she  were  sole,  will 
affect  the  exceptions  in  her  favor,  in  the  statute  of  limitations,  has  ' 
not  yet  been  decided.  That  exception  is  based  upon  the  theory 
that  she  labors  under  a  disability  to  seek  redress  by  an  action.^  This 
exception  is  in  part  the  compensation  for  the  disability  which  the 
law  imposes.  {Code  of  Procedure,  §  88.)  So  far  as  the  disability 
is  removed,  she  ceases  on  principles  of  equity,  to  be  entitled  to  the 
compensation.  But  probably  while  the  statute  remains  in  force, 
she  is  entitled  to  the  benefit  of  all  its  provisions. 

The  statutes  above  referred  to  do  not  cover  all  the  cases  between 
husband  and  wife,  nor  do  they  forbid  the  making  of  marriage  settle- 
ments, or  essentially  alter  the  law  of  trusts  and  powers.  To  a  cer- 
tain extent  they  render  marriage  settlements  unnecessary ;  though 
they  do  not  invalidate  them,  if  the  parties  choose  to  resort  to  that 
mode  of  securing  the  property  of  the  wife. 

In  framing  a  marriage  settlement,  it  is  desirable  that  the  prop- 
erty should  be  vested  in  a  trustee.  This,  however,  is  said  not  to  be 
indispensable,  though  much  to  be  preferred.  In  Strong  v.  Skinner, 
(4  Barh.  546,)  the  subject  was  fully  examined  by  the  court  and  the 
early  cases  reviewed.  The  learned  judge,  who  delivered  the  opinion 
of  the  court,  held  that  since  the  decision  of  Chancellor  Kent,  in 
Bradish  v.  Gihhs,  (3  John.  Ch.  522,)  the  validity,  in  equity,  of  an 
ante-nuptial  agreement  between  husband  and  wife,  without  the  inter^ 
vention  of  a  trustee,  by  which  the  wife  reserves  to  herself  the  power 
of  disposing  of  her  own  property,  either  real  or  personal,  during  cov^ 
erture,  has  not  been  doubted.  Though  such  an  agreement  becomes- 
extinguished  at  law  by  the  subsequent  marriage,  yet  equity  supports 
it,  and  will  compel  the  husband  to  perform  it.  In  such  a  case, 
whether  the  property  be  real  or  i)ersonal,  equity  will  treat  the  hus- 
band as  trustee,  and  hold  him  to  account  as  such.  {Blanclmrd  v. 
Blood,  2  Barh.  S.  C.  B.  352.  2  Story' s  Eq.  Juris.  §  1380.  2  Kent's 
Com.  162.     1  Mad.  Ch.  376.) 

In  the  creation  of  a  trust  for  a  married  woman,  it  is  as  essential 
in  a  marriage  settlement,  as  it  is  in  a  testamentary  disposition  of 
property,  that  it  should  not  violate  the  statute  as  to  the  suspension 
of  the  power  of  alienation,  if  it  be  real  property,  nor  the  statute  as 


280  SUSPENSION  OF  ALIENATION. 

to  the  accumulation  of  personal  property,  if  the  latter  kind  of  prop- 
perty  be  the  object  of  the  trust.  The  revised  statutes  forbid  tho 
suspension  of  the  absolute  power  of  alienation,  by  any  limitation  or 
condition  whatever,  for  a  longer  period  than  during  the  continuance 
of  not  more  than  two  lives  in  being  at  the  creation  of  the  estate,  ex- 
cept in  the  single  case  where  a  contingent  remainder  in  fee  is  al- 
lowed to  be  created  on  a  prior  remainder  in  fee,  to  take  effect  in  the 
event  that  the  j)ersons  to  whom  the  first  remainder  is  limited 
shall  die  under  the  age  of  twenty-one  years,  or  upon  any  other  con- 
tingency by  which  the  estate  of  such  persons  may  be  determined  be- 
fore they  attain  their  full  age.  (1  R.  S.  723,  §§  15,  16.  Harris  v. 
Clark,  3  Seld.  242.) 

With  respect  to  personal  property,  the  statute  provides  that  the 
absolute  ownership  thereof  shall  not  be  suspended,  by  any  limitation 
or  condition  whatever,  for  a  longer  period  than  during  the  continu- 
ance and  until  the  termination  of  not  more  than  two  lives  in  being 
at  the  date  of  the  instrument  containing  such  limitation  or  condi- 
tion ;  or  if  such  instrument  be  a  will,  for  not  more  than  two  lives  in 
being  at  the  death  of  the  testator.  In  all  other  respects,  limitations 
of  future  or  contingent  interests  in  personal  property  are  subject  to 
the  rules  prescribed  in  the  first  chapter  of  the  act  in  relation  to  fu- 
ture estates  in  lands.  (1  R.  S.  773,  §§  1,  2.  Harris  v.  ClarJCj 
supra.) 

We  have  already  anticipated,  in  our  chapter  on  trusts,  most  of 
the  cases  which  are  applicable  to  the  subject  under  consideration. 
The  foregoing  provisions  of  the  revised  statutes  have  been  repeat- 
edly the  subject  of  consideration  by  our  courts.  In  most  instances 
the  question  has  arisen  under  wills ;  but  the  principle  is  the  same 
in  all  cases. 

A  suspension  of  the  absolute  power  of  alienation  for  a  certain 
term,  however  short,  avoids  the  estate;  as  "until  my  youngest 
daughter  is  eighteen  years  of  age."  The  suspension  must  be  bound- 
ed by  life.     {Boynton  v.  Hoyt,  1  Henio,  53.) 

A  few  cases  will  be  adverted  to  in  order  to  illustrate  the  provis- 
ions of  the  statute.  (In  Wood  v.  Wood,  5  Paige,  596,)  there  was 
a  devise  in  trust  for  three  infants,  to  pay  them  the  rents  and 
profits  until  they  were  severally  twenty-one  or  twenty-two  years  old, 
•with  cross-remainders  in  case  any  of  them  should  die  without  issue 
before  coming  into  his  shares  with  remainder  over  in  case  they  all  so 


BY  WHAT  WORDS  CREATED.  281 

died  without  issue.     It  was  held  by  the  chancellor  that  the  limita- 
tion over  was  void  for  remoteness. 

It  has  been  settled  that  a  devise  in  trust  of  an  entire  estate,  to 
receive  the  rents  or  income  thereof  and  to  distribute  it  among  several 
cestui  que  trusts,  cannot  be  considered  as  a  separate  devise  of  the 
share  of  each  cestui  que  trust,  so  as  to  protect  the  share  of  each  as  a 
tenant  in  common  during  his  own  life.  If  the  trust  is  to  endure  for 
a  longer  period  than  two  lives  in  being  at  the  death  of  the  testator, 
the  whole  devise  in  trust  is  void.  (Cosher  v.  Lorillard,  14  Wend. 
265.  Horie  v.  Van  Schaick,  7  Paige,  231.)  Nor  can  the  absolute 
power  of  alienation  be  suspended  by  means  of  a  trust  term,  unless 
the  term  itself  is  so  limited  that  it  must  necessarily  terminate  during 
the  continuance  or  at  the  expiration  of  not  more  than  two  lives  in 
being  at  the  death  of  the  testator.  {Haioley  v.  James,  16  Wend.  61. 
Hone  V.  Van  Schaick,  supra.) 

With  regard  to  personal  property,  it  has  been  held  that  a  trust 
to  recover  the  income  and  apply  it  to  the  uses  of  a  cestui  que  trust 
for  his  life,  or  a  shorter  period,  renders  the  interest  of  the  cestui 
que  trust  inalienable,  and  suspends  the  absolute  ownership  of  the 
trust  fund ;  and  if  such  trust  be  so  liriiited  as  to  suspend  the  ab- 
solute ownership  for  more  than  two  lives  in  being  at  the  death  of 
the  testator,  it  is  void.  This  is  put  upon  the  analogy  to  the  re- 
strictions of  the  revised  statutes  upon  the  power  of  alienating  a 
similar  interest  in  the  rents  and  profits  of  the  real  estate  so  limited 
in  trust.  (1  R.  S.  730,  §  63.)  Hence  an  absolute  limitation  of 
a  trust  term  for  twenty-one  years  in  gross,  and  a  disposition  of 
the  rents  and  income  by  division  among  the  testator's  numerous 
children  and  grandchildren  and  their  descendants,  for  the  whole  of- 
that  period,  was  held  to  be  void.  [Hone  v.'  Van  Schaick,  supra ; 
affirmed,  20   Wend.  564.) 

In  creating  trusts  under  the  revised  statutes,  the  conveyancer 
should,  as  t\ir  as  practicable,  follow  the  precise  language  of  the  law. 
If  he  deviates  from  the  exact  phraseology  in  which  the  power  is 
given,  he  cannot  be  certain  that  the  trust  will  be  valid.  The  55th 
section  of  the  statute  of  uses  and  trusts,  (1  R.  S.  728,)  authorizes 
a  trust  to  receive  the  rents  and  profits  of  lands,  and  apply  them  to 
the  use  of  any  jjcrson.  Whether,  under  this  provision,  a  valid  trust 
could  be  created  to  receive  the  rents  and  profits,  and  pay  them  over 
to  the  beneficiary,  was  for  a  long  time  a  vexed  question,  and  led  to 
much  discussion.    The  opinions  of  the  judges  differed.    Chief  Justice 


282       POWER  OVER  HER  SEPARATE  PROPERTY. 

Savage  and  Judge  Bronson  held  that  such  a  trust  was  void  ;  while 
Chancellor  Walworth  and  Judge  Nelson  held  it  to  be  valid.  {See 
Coster  V.  Lorillard,  14  Wend.  320,  351,  377,  331,  394.  Hawley 
V.  James,  16  id.  156.     Gott  v.  Cook,  7  Paige,  539.) 

The  question  was  at  length  definitively  settled  in  favor  of  the  va- 
lidity of  such  a  trust,  by  the  court  of  appeals,  mLeggett  v.  Perkins, 
(2  Comst.  297.)  This  expression  has  been  supposed  to  be  equiva- 
lent to  a  direction  to  apply  the  income  to  the  use  of  the  beneficiary. 
Either  expression  is  therefore  proper ;  and  that  power  should  be  se- 
lected which  is  the  most  appropriate  to  the  circumstances  and  con- 
dition of  the  party  to  Avhom  it  belongs. 

It  should  also  be  provided  in  the  marriage  settlement,  not  only 
that  the  payment  of  the  income  by  the  trustee  to  the  wife,  should  be 
a  valid  payment,  but  that  her  receipt  therefor,  without  the  inter- 
ference of  her  husband,  should  be  a  protection  to  the  trustee. 

There  was  at  an  early  day,  before  the  revised  statutes,  a  difference 
of  opinion  between  Chancellor  Kent  and  the  court  of  errors,  with  re- 
spect to  the  power  of  a  married  woman  under  a  marriage  settle- 
ment over  her  separate  property.  The  chancellor  thought  that  she 
must  execute  the  power  in  the  manner  pointed  out  in  the  articles; 
and  that  she  was  to  be  treated  as  a  feme  sole,  only  to  the  extent  of 
the  power  given  her  in  the  marriage  settlement.  The  court  of  errors 
held,  that  though  a  particular  mode  of  disposition  was  especially 
pointed  out  in  the  settlement,  it  would  not  preclude  the  wife  from 
adopting  any  other  mode  of  disposition,  unless  she  was  expressly 
restrained  in  the  instrument  to  a  particular  mode.  (See  Jaques 
V.  Methodist  Epis.  Ch.  supra,  and  S.  C.  3  John.  Ch.  87.) 

The  decision  of  the  court  of  errors  rendered  the  wife  more  com- 
pletely and  absolutely  a  feme  sole  in  respect  to  her  separate  pro])erty, 
than  was  before  su2:)posed  to  be  the  case.  The  limitation  in  mar- 
riage articles  to  a  particular  mode  of  alienation,  was  intended  as  a 
check  to  the  secret  and  insensible  but  powerful  marital  influence, 
■which  might  be  exerted  unduly,  yet  in  a  manner  to  baffle  all  in- 
quiry and  detection.  (2  Kent's,  Com.  166.)  The  difference  betweeu 
the  two  courts  is  now  of  little  consequence  in  this  state.  In  cases 
falling  within  the  acts  of  1849  and  1860,  the  wife  is  left  wholly 
without  control  as  to  the  mode  of  alienation  ;  and  in  cases,  if  there 
be  any,  not  within  those  statutes,  the  framer  of  the  marriage  articles 
can  easily  restrict  the  unmarried  woman  to  a  particular  mode  of  dis- 
position, and  require  the  consent  of  her  trustee,  if  such  a  safeguard 


ANTICIPATION.  283 

againsttheinfluenceof  the  husband  is  desired.  The  rule  as  orig- 
inally declared  by  the  chancellor,  seems  to  have  been  preferred  in 
other  states.  That  decision  was  made  before  the  revised  statutes,  and 
was  grounded  upon  the  common  law. 

Marriage  settlements  are  usually  dictated  by  the  prudence  and 
forethought  of  parents  or  friends,  from  an  anxious  desire  to  protect 
the  wife  from  the  consequences  of  the  improvidence,  misfortunes  or 
vices  of  the  husband.  Unless  it  was  competent  to  prevent  the  wife 
from  anticipating  her  income,  by  an  entire  disposition  of  the  whole 
at  once,  the  provision  in  her  favor  would  be  found  to  be  fruitless. 
If  her  power  of  alienation  over  her  separate  ^operty  is  left  the  same 
as  it  is  under  the  acts  of  1849  and  1860,  there  is  nothing  to  prevent 
her  from  yielding  to  the  importunity  of  her  husband,  and  to  sur- 
render at  once  the  fund  which  was  intended  to  afford  her  a  support 
for  life.  To  prevent  this,  a  clause  against  anticipation  was  formerly 
allowed  to  be  inserted  in  th#marriage  articles.  The  revised  statutes, 
while  they  do  not  forbid,  seem  to  render  this  unnecessary ;  for  they 
have  thrown  an  effectual  protection  over  the  interest  of  persons  not 
able  to  protect  themselves.  The  63d  section  of  the  statute  of  trusts 
(1  R.  S.  730,)  enacts  that  no  person  beneficially  interested  in  a  trust 
for  the  |-eceipt  of  the  rents  and  profits  of  lands,  can  assign,  or  in  any 
manner  dispose  of  such  interest ;  but  the  rights  and  interest  of  every 
person  for  whose  benefit  a  trust  for  the  payment  of  a  sum  in  gross 
is  created  is  assignable.  And  the  65th  section  of  the  same  title  en- 
acts that  when  the  trust  shall  be  expressed  in  the  instrument  cre- 
ating the  estate,  every  sale,  conveyance,  or  other  act  of  the  trustees, 
in  contravention  of  the  trust,  shall  be  void.  These  sections  have 
received  the  authoritative  exposition  of  the  courts.  In  L'Amoreux  v. 
Va7i  Rensselaer,  (1  Barh.  Ch.  37,)  the  chancellor  said  that  previous 
to  the  adoption  of  the  revised  statutes,  a  trustee  might  hold  the 
mere  naked  legal  estate  in  real  property,  for  a  feme  covert,  while  the 
whole  equitable  interest  and  estate  therein  was  in  her,  and  subject 
to  her  control.  In  relation  to  such  an  estate,  therefore,  she  was 
considered  as  a  feme  sole,  and  could  charge  her  equitable  interest  in 
the  property  with  any  debt  she  might  think  pi:oper  to  contract  on 
the  credit  thereof,  which  was  not  inconsistent  with  the  trust  or  with 
the  nature  of  her  interest  in  the  premises,  and  which  was  authorized 
by  the  instrument  or  conveyance  creating  the  trust.  All  such  mere 
personal  trusts,  even  in  favor  of  femes  covert,  are  now  abolished,  and 
in  the  few  cases  which  are  authorized  by  the  revised  statutes,  the 


284     SUCH  CLAUSE  NEEDLESS  UNDER  REVISED  STATUTES. 

whole  estate,  both  legal  and  equitable,  is  vested  in  the  trustee.  The 
statute  also  declares  in  terms,  in  the  60th  section,  that  the  person 
for  whose  benefit  the  trust  is  created  shall  take  no  estate  or  interest 
in  the  land  ;  but  may  enforce  the  performance  of  the  trust  in  equity. 
The  cestui  que  trust,  therefore,  has  no  right  to  charge  the  trust 
property,  even  for  necessary  repairs  thereon,  without  the  authority 
of  the  trustee.  This  doctrine  has  been  repeatedl}''  reaffirmed, 
{Noyes  v.  Blakeman,  2  Seld.  567.  Belmont  v.  O'Brien,  2  Kern. 
394.)  In  Noyes  v.  Blakeman,  [siipra,)  the  case  was  this  :  "  In  Oc- 
tober, 1842,  the  defendant  Henry  Blakeman  and  Ann  Maria  Blake- 
man, his  wife,  united  in  a  conveyance  of  certain  lands,  (the  fee  of 
which  was  in  Mrs.  Blakeman  as  sole  heir  of  her  late  father,)  to  Hen- 
ry F.  Belden,  in  trust :  First,  to  pay  over  of  the  rents  and  profits, 
the  interest  upon  the  mortgages  and  other  incumbrances  ;  the  ne- 
cessary taxes  and  assessments  ;  the  necessary  expenses  incurred  in 
the  needful  repairs  and  insurance  of  the  buildings  on  said  premises  ; 
and  to  pay  the  remainder  thereof  to  the  said  Ann  Maria,  upon  her 
own  separate  receipt,  notwithstanding  her  coverture,  to  the  intent 
and  purpose  that  the  same,  or  any  part  thereof,  might  not  be  at  the 
disposal  of,  or  subject  to  the  control,  debts,  liabilities  or  engagements 
of  the  said  Henry  Blakeman,  or  of  any  future  husband  she  might 
have,  but  at  her  own  sole  and  separate  use  and  disposal.  Secondly, 
upon  her  decease,  during  coverture,  to  apply  and  dispose  of  the  in- 
come, as  she  should  by  will  appoint,  and  in  default  of  such  appoint- 
ment, to  apply  said  income  to  the  maintenance  and  education  of  her 
children,  if  any  survived  her,  and  if  not,  to  pay  the  same  to  Henry 
Blakeman  for  life  ;  with  power  to  devise  said  lands  by  will,  and  to 
appoint  a  new  trustee  or  trustees  as  often  as  a  vacancy  should  oc- 
cur." Under  this  settlement  it  was  held  that  the  trustee,  during 
the  life  of  the  beneficiary,  had  the  whole  legal  and  equitable  estate 
in  the  lands,  subject  only  to  the  execution  of  the  trust ;  and  that 
the  married  woman  for  whose  benefit  the  trust  was  created,  had  no 
estate  or  interest  in  the  lands  or  in  the  future  income,  upon  which 
she  could  create  a  lien  or  charge,  for  the  expense  of  protecting  the 
trust  estate,  or  for  ^ny  other  purpose.  In  the  same  case  it  was  held 
that  a  married  woman  could  not  incur  an  obligation,  binding  her 
personally,  even  for  the  expense  of  protecting  property  held  by  a 
trustee  for  her  use. 

It  would  seem  that  in  a  trust  created  since  the  revised  statutes,  a 
clause  against  anticipation  was  not  necessary,  to  insure  the  protec- 


THISRE  SHOULD  BE  A  TRUSTEE.  2S5 

tion  of  the  interest  of  a  married  woman.  It  is  however  advisable, 
that  the  estate  should  be  conveyed  in  trust  to  a  trustee,  in  conform- 
ity to  law ;  and  not  be  left  in  such  a  manner  that  the  wife  would  be 
compelled  to  seek  the  aid  of  a  court  of  equity  to  convert  her  husband 
into  a  trustee  for  her  benefit.  The  property  of  a  married  woman 
held. in  trust  since  the  revised  statutes,  is  more  effectually  guarded 
for  her  benefit,  against  the  importunities  of  her  husband,  than  that 
which  she  derives  under  the  acts  of  1849  and  1860.  In  the  latter 
cases,  she  has  the  same  right  of  disposition  as  an  unmarried  woman, 
and  has  not  the  friendly  counsel  of  a  trustee  to  guard  her  interests 
from  abuse. 

The  foregoing  cases  relate  to  trusts  created  in  real  estate.  The 
revised  statutes  have. not  attempted  to  define  the  objects  for  whict 
express  trusts  of  personal  estate  may  be  created ;  as  they  have  done 
in  relation  to  trusts  in  real  estate.  Such  trusts  therefore  may  be 
created  for  any  purposes  which  are  not  illegal.  Indeed  it  would  be 
very  difficult,  says  the  chancellor,  if  not  impossible,  in  many  cases, 
to  create  and  preserve  future  and  contingent  interests  in  personal 
property  without  the  intervention  of  a  trustee  ;  although  such  trus- 
tees would  not  be  necessary,  under  the  provisions  of  the  revised 
statutes,  to  create  and  preserve  such  future  and  contingent  interests 
in  lands,  or  other  real  estate.  {Gott  v.  Cook,  7  Paige,  534.  Kane 
v.  Gott,  24  Wend.  661,  ^er  Cowen,  J.  Daij  v.  Both,  4  Smith,  448. 
WiUard's  Eq.  Jur.  423.) 

Most  of  the  cases  which  are  reported  in  this  state  arose  under 
marriage  settlements  executed  previous  to  the  revised  statutes,  and 
were  decided  according  to  the  principles  then  in  force.  The  law  in 
relation  to  trusts  and  powers  underwent  great  changes  when  the 
statutes  were  revised  in  1830.  Many  of  the  trusts  usually  inserted 
in  marriage  settlements  in  England,  would  now  be  invalid  if  intro- 
duced into  such  articles,  in  this  state,  at  the  present  day.  Many 
others  are  rendered  useless  and  unnecessary  by  our  existing  laws ; 
and  others  are  inapplicable  to  our  law  of  tenures,  converting  estates 
tail  into  estates  in  fee  simple. 

In  framing  articles  of  marriage  settlement  regard  must  be  had  to 
the  existing  state  of  our  law  relative  to  trusts  and  powers.  The 
more  simple  they  can  be  drawn,  the  less  likely  will  they  be  to  lead 
to  litigation.  The  tendency  to  preserve  estates  for  distant  and  re- 
mote generations  is  severely  checked  by  the  policy  of  our  laws. 
They  should  allow  the  receipt  of  the  wife  of  the  income  to  be  a  good 


286  •  ANTE-NUPTIAL  AGREEMENT. 

discharge  to  the  trustee,  and  should  provide  for  her  ultimate  dispo- 
sition of  the  property  at  her  death,  by  a  will,  or  an  instrument  in 
the  nature  of  a  will. 

It  cannot  be  expected  in  a  brief  chapter  on  this  interesting  subject, 
that  a  a  full  discussion  can  be  had  of  "all  that  appertains  to  marriage 
settlements.  If  free  from  fraud,  they  will  be  upheld  against  the 
claims  of  the  creditors  of  the  husband.  Equity  affords  its  aid  to 
execute  covenants  contained  in  them  in  favor  of  any  person  within 
the  influence  of  the  marriage  consideration.  The  husband  and  wife 
and  their  issue  fall  within  this  influence. 

The  general  division  of  this  class  of  agreements  is  into  such  as  are 
made  before  marriage  and  in  contemplation  of  that  relation,  and 
^uch  as  are  made  afterwards.  The  first  are  sometimes  called  ante- 
nuptial, and  the  last  post-nuptial,  agreements.  We  shall,  in  the 
further  consideration  of  this  subject,  subjoin  some  remarks  on  each 
of  these  kinds  of  agreements,  and  notice  some  of  the  incidental  and 
collateral  principles  which  usually  attend  them. 

Section  II. 

Of  Ante-nuptial  Agreements  and  Settlements  made  hefore  marriage. 

The  general  rule  with  respect  to  a  nuptial  contract  is  that  rights 
dependent  on  it  are  governed  by  the  lex  loci  contractus.  {Decouche 
V.  Savetier,  3  John.  Ch.  190.)  Our  courts  have  occasionally  had  to 
investigate  the  foreign  law  and  apply  it  to  the  transactions  of  the 
])arties.  These  cases  are  not  of  frequent  occurrence.  We  shall  in- 
vite the  attention  of  the  reader  to  only  a  few  of  them.  In  the  case 
of  Le  Breton  v.  3Iiles,  decided  in  the  court  of  chancery  of  New  York, 
in  1840,  (8  Paige,  261,)  the  subject  was  very  fully  considered 
by  the  chancellor.  In  that  case,  two  natives  of  France  entered  into 
an  ante-nuptial  contract  in  New  York  relative  to  their  future  in- 
terests in  property  which  they  had  at  the  time  of  the  marriage,  or 
w^iich  they  should  acquire  during  the  coverture,  which  contract  was 
made  in  reference  to  the  law  of  France,  and  to  an  intended  residence 
in  that  country,  and  was  by  its  terms  to  be  afterwards  drawn  up  in 
the  due  form  of  a  marriage  contract  according  to  the  French  law, 
but  the  parties  after  their  marriage  continued  to  reside  in  this  state. 
It  was  held  notwithstanding,  that  the  rights  of  the  parties  under 
such  contract  must  be  governed  by  the  laws  of  France  which  were 
in  force  at  the  time  of  the  commencement  of  the  marriage. 


AGREEMENTS  AS  TO  FOREIGN  LAWS.  287 

In  this  Ccose  the  ante-nilptial  agreement  is  set  out  at  full  length, 
and  is  accompanied  with  the  remarks  of  the  chancellor  upon  it. 
Many  princii)les  were  settled  with  reference  to  the  French  law,  which 
it  is  unnecessary  to  notice  in  this  place.  It  was  said  that  when 
parties  marry  with  reference  to  the  laws  of  a  particular  state  or 
country,  as  their  intended  domicil,  those  laws  govern  in  the  con- 
struction of  a  marriage  contract  entered  into  between  them,  so  far 
at  least  as  their  rights  of  personal  property  are  concerned.  But  the 
remedy  to  secure  such  property,  and  to  protect  the  rights  of  the 
parties  to  the  contract,  must  be  according  to  the  law  of  the  country, 
in  the  courts  of  which  such  remedy  is  sought. 

In  De  Barante,  v.  Gott,  (6  Bm-h.  492,)  the  aute-nuptial  contract  was 
executed  in  France  with  the  solemnities  required  by  the  laws  of  that 
country,  and  was  executed  with  reference  to  a  marriage  of  the  parties, 
which  took  place  two  days  after.  In  one  branch  of  the  articles,  it 
was  stipulated  that  in  case  of  the  death  of  the  wife,  without  having 
children,  her  husband  receiving  the  real  estate  of  which  she  should 
die  possessed  in  the  United  States,  should  be  immediately  sold,  and 
the  proceeds  remitted  to  her  husband.  It  was  held  that  this  pos- 
session operated  as  a  grant  to  the  husband,  contingent  upon  the 
event  which  happened.  Independent  of  the  ante-nuptial  articles,  the 
husband  would  not  have  been  entitled,  by  the  law  of  this  country, 
to  succeed  to  the  real  estate  belonging  to  his  wife  at  the  time  of 
her  death.     Yet  full  effect  was  given  to  the  marriage  articles. 

In  that  case  there  was  no  trustee  appointed  by  the  marriage  arti- 
cles by  whom  the  real  estate  of  the  wife,  on  her  death,  could  be  sold 
and  the  proceeds  remitted  to  the  husband.  This,  however,  was  held 
to  be  no  obstacle,  as  equity  never  suffers  a  trust  to  fail  for  want  of  a 
trustee,  and  land  directed  to  be  sold  and  converted  into  money  is, 
for  all  purposes,  on  the  principles  of  equitable  conversion,  to  be 
treated  as  if  so  converted.  {See  also  Craig  v.  Leslie,  3  Wheaton, 
563 ;  Gott  v.  Cook,  7  Paige,  534,  07i  the  subject  of  equitable  con- 
version.) The  subject  of  marriage  contracted  in  France,  under  the 
law  of  community,  was  also  considered,  in  Vail  v.  Vail,  (17  Barb.  226.) 

In  affording  relief  in  matrimonial  contracts  made  with  reference 
to  the  laws  of  another  country,  courts  are  governed  by  the  law  of 
comity.  {Story's  Conflict,  ch.  2.)  But  no  aid,  it  is  presumed, 
will  be  granted  in  carrying  out  matrimonial  engagements  made  with 
reference  to  a  foreign  country,  when  the  principles  sought  to  be  en- 
forced are  against  sound  morals  and  the  settled  laws  and  institutions 


288  BOTH  SHOULD  JOIN  IN  THE  ARTICLES. 

of  the  country  whose  courts  are  resorted  to  for  relief.  Thus,  agree- 
ments based  on  the  principles  applicable  to  polygamy,  though  the 
parties  contemplate  a  residence  in  a  country  where  polygamy  is 
authorized  by  law,  will  not  be  aided  by  our  courts. 

It  is,  however,  mainly  with  reference  to  cases  arising  in  this  coun- 
try that  the  conveyancer  will  be  called  upon  to  act.  A  settlement 
made  by  the  wife  before  marriage  is  in  derogation  of  the  marital 
rights  of  the  husband,  and  if  made  without  his  knowledge,  is  fraud- 
ulent and  void.  The  fraud  consists  in  disappointing  the  hopes  and 
expectations  raised  by  the  marriage  treaty.  The  proper  way  is,  to 
have  the  intended  husband  and  wife  join  in  the  articles  which  convey 
the  estate  to  the  trustee,  then  both  are  bound  by  it.  Such  instru- 
ment should  contain  the  trusts  by  which  the  property  is  held,  and 
the  powers  which  are  intended  to  be  reserved  or  conferred  upon  the 
■wife.  Of  course  the  settlement  here  spoken  of,  is  of  the  property  of 
the  wife. 

But  marriage  articles  often  provide  for  vesting  in  the  trustee  for 
the  benefit  of  the  wife  property  belonging  to  the  husband.  Both 
parties  should  join  in  such  instrument.  We  have  seen  in  a  previous 
chapter,  in  what  manner  a  wife  may  bar  her  right  to  dower,  by  an 
ante-nuptial  agreement,  and  in  what  cases  she  is  put  to  her  election 
between  her  jointure  and  her  dower.  (1  R.  S.  741,  §§9-12.  Mc- 
Cartee  v.  Teller,  2  Paige,  511,  561.  Ante,  p.  66,  69.)  It  will  not  be 
necessary  to  repeat  what  was  there  said. 

We  have  seen  th^t  the  husband  has  only  a  qualified  interest  in 
the  wife's  chattels  real.  He  may  reduce  them  to  possession ;  but 
if  he  fails  to  do  so  and  dies,  they  survive  to  the  wife,  both  at  law 
and  in  equity.  Now  the  wife's  contingent  right  of  survivership  may 
be  barred  by  a  settlement,  made  upon  her  before  marriage,  or  by  a 
settlement  after  marriage,  in  pursuance  of  an  agreement  before  mar- 
riage. Such  a  settlement,  if  adequate  to  the  wife's  fortune,  has  been 
considered  as  a  purchase  of  it,  though  there  was  no  agreement  be- 
tween the  parties  to  that  effect.  {Blois  v.  Lady  Hertford,  2  Vern. 
501.  Clancy,  102.)  The  wife  cannot  have  her  jointure  and  fortune 
both.     The  one  is  supposed  to  be  the  equivalent  of  the  other. 

Previous  to  the  revised  statutes  of  1830,  and  as  the  law  stood  at 
that  time,  an  absolute  conveyance  in  fee,  to  a  married  woman, 
whether  by  deed  or  devise,  carried  with  it  a  present  life  estate  to  the 
husband,  and  an  estate  by  curtesy,  if  there  was  issue  born  alive  of 


HOW  SETTLEMENT  MADE  WITHOUT  A  TRUSTEE.  289 

the  marriage.  A  parent  or  friend,  who  wished  to  vest  in  the  wife 
the  uncontroUed  disposition  of  the  fee,  could  not  do  it  by  a  direct 
grant  or  devise  to  her  in  fee.  It  was  to  enable  him  to  do  so  and  to 
prevent  the  consequences  which  resulted  from  her  ownership  of  real 
estate  during  the  marriage,  that  the  80th  section  of  the  article  on 
powers  was  passed.  If  the  grantor  wished  that  the  husband  should 
have  no  control  or  interest  in  the  property  in  right  of  his  wife,  he  had 
only  to  annex  to  the  grant  or  devise  a  power  to  the  married  woman, 
authorizing  her  to  dispose,  during  her  marriage,  and  without  the 
concurrence  of  her  husband,  of  the  lands  so  conveyed  or  devised  to 
her  in  fee.  This  power  the  owner  of  the  fee  has  a  right  to  confer ; 
and  it  precedes  the  interest  which  the  husband  would  otherwise 
have  in  it ;  and  on  being  executed  by  the  wife,  overreaches  any  in- 
choate rights  which  as  husband  he  would  have  at  common  law. 
Under  such  a  power  a  wife  could,  even  before  the  laws  of  1848,  1849 
and  1860,  relative  to  the  rights  of  married  women,  take  a  conveyance 
in  fee  to  her  separate  use,  with  a  power  to  convey  to  any  one  whom 
she  might  choose,  for  her  own  benefit ;  and  thus  a  very  proper  mar- 
riage settlement  could  be  made  without  the  intervention  of  trus- 
tees.    ( Wright  v.  Tahnadge,  15  N.  Y.  Rep.  313.) 

We  have  seen  in  a  preceding  chapter,  (see  Part  2,  ch.  2,)  that  by 
the  110th  section  of  the  article  on  powers,-  the  disability  of  coverture, 
in  respect  to  the  execution  of  powers,  is  completely  taken  away,  and 
a  married  woman  may  without  the  concurrence  of  her  husband,  exe- 
cute, during  coverture,  any  power  which  may  be  lawfully  conferred 
upon  any  person,  unless  the  instrument  creating  the  power  forbids 
its  execution  during  marriage. 

The  80th  section,  before  adverted  to,  relates  to  a  general  and  hen- 
ejicial  power,  given  to  a  married  woman,  &c.  What  constitutes  a 
general  and  beneficial  power  is  sometimes  open  to  controversy.  In 
Jackson  v.  Edioards,  (22  Wend.  498,)  where  an  estate  was  granted 
during  the  joint  lives  of  a  husband  and  wife,  with  power  to  the  wife 
of  ap2^ointing  the  fee  either  by  deed  or  will ;  and  if  she  died  before 
her  husband,  without  executing  the  power,  the  estate  to  go  to  her 
issue ;  and  in  default  of  issue,  to  her  right  heirs — she  taking  the 
absolute  fee  if  she  survived  her  husband  ;  it  was  held  that  the  wife 
had  a  general  and  beneficial  power,  within  the  provisions  of  the  stat- 
ute, of  appointing  the  fee.  {S.  C.  7  Paige,  386.  Frazer  v.  West- 
ern, 1  Barh.  Ch.  240.      Wright  v.  Talmadge,  supra.) 

We  have  seen  that  trusts  in  marriage  settlements  may  be  so  cre- 

WlLL.— 19 


290  POLICY  OF  INALIENABLE  SETTLEMENTS. 

ated  that  the  property  is  inalienable  until  the  purposes  of  the  trust 
have  been  accomplished.  In  such  a  case  the  wife  is  relieved  from 
all  importunity  from  her  husband,  because  such  importunity  would 
be  fruitless.  But  in  a  country  like  ours,  where  the  condition  of 
affairs  is  constantly  changing,  and  where  the  interests  and  happiness 
of  all  parties  may  be  greatly  benefited  by  a  change  of  domicil  from 
one  part  of  the  country  to  another,  it  may  well  be  doubted  whether 
there  is  not  more  lost  than  is  gained  by  the  unalterable  stability 
of  a  settlement.  Few  persons  desire  to  be  absolutely  confined  to  one 
spot,  however  desirable  in  itself,  and  no  one  can  anticipate  all  the 
exigencies  that  may  arise  in  the  affairs  of  any  family.  In  settle- 
ments where  the  wife  has  the  disposition  of  her  estate  during  cover- 
ture, as  well  as  in  cases  arising  under  the  late  acts  of  1849  and  1860, 
she  can  always,  by  uniting  with  her  husband  in  the  deed,  convey  an 
indefeasible  title  to  the  estate.  She  may  execute  a  mortgage  of  her 
own  estate,  under  a  power  reserved  to  her  in  a  marriage  settlement 
executed  previous  to  the  marriage.  {Leavitt  v.  Pell,  27  Barh.  322.) 
In  the  last  mentioned  case,  the  wife,  by  a  marriage  settlement  exe- 
cuted in  1827,  in  effect  reserved  the  right  and  power  to  sell  and  dis- 
pose of  her  real  estate  included  in  the  settlement  as  she  should  think 
proper,  and  as  if  she  were  a  feme  sole ;  and  to  revoke  the  uses  and 
trusts  contained  therein,  and  to  declare  new  uses  and  trusts,  by  deed 
under  the  hands  and  seals  of  herself  and  her  husband.  In  1834,  a 
tripartite  indenture  was  executed  by  P.  the  husband,  as  party  of  the 
first  part,  Mrs.  P.  of  the  second  part,  and  S.,  the  trustee  of  the  wife, 
of  the  third  part,  by  which,  after  reciting  the  seisin  of  S.  in  trust 
for  Mrs.  P.  of  certain  lands,  subject  to  powers  of  revocation  and  ap- 
pointment of  new  trusts,  the  employment  of  her  separate  estate  to 
buy  the  same,  and  an  agreement  to  revoke  such  trusts,  and  that  the 
same  should  be  held  by  S.  lipon  the  trusts  thereinafter  mentioned — 
the  parties  of  the  first  and  second  parts  to  carry  such  agreement 
into  effect  by  virtue  of  all  the  powers  vested  in  them,  revoked  all 
existing  uses,  estates,  trusts,  powers  and  limitations,  in  respect  to 
such  lands,  other  than  those  intended  to  be  executed,  limited  and 
appointed  to  the  use  of  S.  the  said  premises  upon  the  trusts  therein 
mentioned ;  and  conveyed  the  same  to  him  in  fee,  upon  such  trusts, 
to  wit :  1.  To  receive  the  rents  thereof  and  apply  the  same  to  Mrs. 
P.'s  separate  use,  free  from  the  control,  debts  or  engagements  of  any 
husband  of  her's.  2.  After  her  death,  to  convey  such  premises  as  she 
should  direct  by  last  will  and  testament,  &c.  and  in  default  of  such 


HUSBAND  BOUND  TO  SUPPORT  HIS  WIFE.  291 

appointment,  to  receive  the  rents  thereof  and  jiay  the  same  to  Mrs. 
P.  for  life.  3.  After  the  death  of  both  Mr.  and  Mrs.  P.  and  in  de- 
fault of  such  appointment  by  her,  to  her  issue,  and  in  default  of 
issue  to  her  heirs.  This  instrument  also  contained  this  proviso,  viz : 
That  Mrs.  P.  might,  notwithstanding  her  coverture,  with  the  con- 
sent of  Mr.  P.  if  living,  or  alone  if  he  were  dead,  by  deed,  mortgage, 
charge,  or  make  chargeable,  such  premises,  with  and  for  the  pay- 
ment of  any  sum  and  sums  of  money,  &c.  It  was  held  by  the  su- 
preme court  in  the  first  district,  that  this  deed  or  instrument  was  a 
disposition  and  revocation  within  the  meaning  of  the  marriage  set- 
tlement of  1827,  as  to  the  premises  mentioned  therein  ;  and  that  by 
it,  and  as  a  part  of  such  disposition  and  revocation,  Mrs.  P.  reserved 
the  power  to  mortgage  the  said  premises  with  the  consent  of  her 
husband.  And  the  husband  and  wife,  and  S.  the  trustee,  haying 
subsequently  joined  in  executing  a  mortgage  to  the  North  American 
Trust  and  Banking  Company  ;  it  was  further  held,  that  such  mort- 
gage was  a  proper  execution  of  the  power,  and  was  valid  ;  the  assent 
of  the  husband  being  shown  by  his  executing  the  same,  and  the  legal 
title  being  conveyed  by  S.'s  execution  thereof 

In  general  the  marriage  articles  should  be  executed  by  parties 
able  to  contract.  The  rule  seems  to  be  universal  that  all  deeds,  or 
instruments  under  seal,  executed  by  an  infant,  are  voidable  only, 
with  the  single  exception  of  those  which  delegate  a  naked  authority, 
which  alone  are  void.  (Bool  v.  31{x,  17  Wemd.  119.  Gillett  v. 
Stanley,  1  Hill,  121.)  The  objection  tq^  the  validity  of  a  marriage 
settlement  on  the  ground  that  the  parties  were  infants,  can  only  be 
made  by  the  parties  themselves.  It  cannot  be  raised  by  the  trustee. 
Such  instrument  is  not  void,  but  voidable  only.  (Jones  v.  Butler, 
30  BarK  641.) 

Although  the  whole  real  and  personal  estate  of  the  wife  be  secured 
to  her  separate  use,  the  husband  is  notwithstanding  bound  to  main- 
tain her  and  family  during  coverture.  (Bleth.  Ep.  Church  v.  Jaques, 
1  JoJm.  Ch.  450.)  Nor  do  either  of  the  acts  of  1848, 1849  or  1860, 
relieve  the  husband  from  his  liability  for  the  torts  of  his  wife,  or 
derogate  from  his  power  of  personal  control  over  her.  (Hashrouck 
V.  Weaver,  10  John.  247.) 


292  POST  NUPTIAL  AGREEMENTS. 


Section  III. 

Of  Post  Nuptial  Agreements,  and  Settlements  made  after  3Iar- 

riage. 

It  is  a  general  principle  of  the  common  law  that  a  deed  from  the 
husband  directly  to  the  wife  is  void,  though  she  might  purchase  of 
others  without  the  consent  of  her  husband.  (Co.  Lit,  3  a.  Sliep- 
ard  V.  Shepard,  7  John.  Ch.  60.  Strong  v.  Skinner,  4  Barh.  552.) 
Hence  post  nuptial  marriage  settlements  can  rarely  be  made  with- 
out the  aid  of  a  court  of  equity.  In  Shepard  v.  Shepard,  (supra,) 
Chancellor  Kent  held  that  a  suitable  provision  by  deed  from  a  hus- 
band to  his  wife,  will  be  supported  in  equity. 

If  a  settlement  be  made  after  marriage  in  pursuance  of  a  prior  agree- 
ment entered  into  before  marriage,  it  is  valid  not  only  between  the 
parties,  but  as  against  creditors.  It  is  merely  doing  by  the  act  of  the 
parties  what  the  court  would  order  to  be  done.  {Beade  v.  Livings- 
ton, 3  John.  488.)  Marriage  itself  is  a  sufficient  consideration  to 
uphold  such  a  settlement. 

Questions  with  respect  to  the  validity  of  post  nuptial  settlements 
most  frequently  arise  between  the  creditors  of  the  husband  and  the 
wife,  or  her  trustee  in  whom  the  title  is  vested.  It  is  well  settled 
that  a  voluntary  settlement  either  of  lands  or  chattels,  by  a  person 
indebted  at  the  time,  for  the  benefit  of  his  wife  and  children,  is  void 
as  against  his  creditors.  This  rule  applies  as  well  to  such  property 
as  the  creditor  could  not  reach,  by  execution  at  law,  such  as  choses 
in  action,  &c.,  as  to  tangible  chattels.  Indeed,  the  process  of  the 
court  can,  according  to  present  practice,  be  made  available  against 
choses  in  action  and  equitable  interests,  as  well  as  against  real  prop- 
erty or  chattels.  {Baijard  v.  Hoffman,  4  John.  Ch.  452.  Beade 
V.  Livingston,  supra.     Code,  §  292,  d:c.) 

But  if  the  husband,  though  indebted  at  the  time,  settles  upon  the 
wife  personal  estate  which  came  to  her  by  descent  from  her  relatives, 
to  no  greater  extent  than  the  court  of  chancery  would  have  directed 
him  to  do  upon  a  bill  filed  against  him  by  the  wife  to  protect  her 
equitable  claim  to  a  support  for  herself  and  her  children  out  of  the 
same,  such  voluntary  settlement  will  be  sustained  as  against  the 
creditors  of  the  husband ;  although  it  may  be  void  as  to  other  prop- 
erty contained  in  the  same  conveyance  to  the  trustee.     ( Wickes  v. 


AS  AGAINST  CREDITORS.  293 

Clarle,  8  Paige,  161.)  Under  the  late  acts  relative  to  the  property 
of  married  woiiien,  (the  acts  of  1849  and  I860,)  the  creditors  of  the 
husband  could  not  reach  such  property  at  all ;  and  they,  therefore, 
would  have  no  equity  to  disturb  a  settlement  of  it  by  the  husband 
in  favor  of  his  wife. 

As  against  creditors  whose  debts  existed  at  the  time,  a  post  nup- 
tial settlement  will  not  be  permitted  to  stand  beyond  the  value  of 
the  consideration.     (Gnrlick  v.  Stroiuj,  3  Paige,  452.) 

Although  post  nuptial  contracts  between  husband  and  wife,  by 
which  property  is  set  apart  to  her  separate  use,  are  void  at  law,  yet 
if  they  arise  out  of  considerations  moving  from  her,  they  will  be  sus- 
tained in  equity.  Thus,  where  the  husband,  who  was  about  to  sell 
his  estate,  agreed  with  his  wife,  and  with  the  knowledge  of  the  pur- 
chaser, that  if  she  would  join  in  a  deed  of  the  premises  so  as  to  re- 
lease her  dower,  she  should  receive  a  certain  portion  of  the  purchase 
money  as  her  separate  property,  free  from  the  control  of  her  hus- 
band ;  and  the  purchaser  gave  a  note  to  the  wife  for  her  share  of  the 
purchase  money,  and  the  agent  for  the  wife,  in  whose  hands  the  note 
had  been  placed  for  her  use,  loaned  a  part  of  the  money  received  oa 
the  note,  and  took  a  bond  and  mortgage  directly  to  the  wife ;  and 
the  husband  afterwards  assigned  the  mortgage  to  the  original  pur- 
chaser of  the  estate,  without  the  assent  of  the  wife,  or  her  agent,  it 
was  held  that  in  equity  the  bond  and  mortgage  belonged  to  the  wife, 
and  that  she  was  entitled  to  the  money  due  thereon  for  her  sepa- 
rate use.    [Garlich  v.  Strong,  sicjJ.    Searing  v.  Searing,  9  Paige, 289.) 

With  regard  to  what  is  a  sufficient  consideration  for  a  post  nup- 
tial settlement  as  against  creditors  ;  not  only  her  joining  with  her 
husband  in  a  deed  so  as  to  discharge  her  claim  to  dower  in  the  land 
conveyed,  but  her  equity  in  a  legacy,  before  the  late  statutes,  have 
been  held  to  be  sufficient  for  this  purpose.  {Patridge  v.  Havens, 
10  Paige,  618.) 

Although  upon  a  deed  iiiter  partes  a  stranger  cannot,  at  law,  re- 
cover on  a  covenant  contained  therein  for  his  benefit,  yet  a  court  of 
equity  will  give  effect  to  stipulations  of  this  kind  in  marriage  arti- 
•  cles,  and  other  conveyances  in  trust,  upon  the  application  of  the 
party  for  whose  benefit  the  provision  was  intended. 

Thus,  where  the  bill  charged,  that  by  a  post  nuptial  agreement 
between  the  defendants,  a  husband  and  his  wife,  the  property  of  the 
wife  was  conveyed  to  trustees,  and  it  was  agreed  that  a  certain  spe- 
cified part  of  the  property  should  be  vested  in  stocks,  or  put  out  at 


294  NO  TECHNICAL  WORDS  NECESSARY. 

interest  as  a  provision  for  the  complainant  for  whom  the  wife  con- 
sidered herself  under  a  moral  obligation  to  provide,  and  that  the 
interest  or  the  dividends  on  the  stock  should  he  paid  to  the  wife, 
free  from  the  control  of  her  husband,  for  the  use  and  benefit  of  the 
complainant,  according  to  the  directions  of  the  wife  during  her  life, 
and  that  upon  the  death  of  the  wife  the  principal  should  become  the 
property  of  the  complainant  if  she  survived  her  ;  and  the  bill  fur- 
ther charged  that  the  husband  refused  to  permit  his  wife  to  receive 
the  dividends  on  the  stock,  and  to  pay  them  over,  according  to  her 
direction,  to  the  complainant ;  a  general  demurer  to  the  bill  for  want 
of  equity,  put  in  by  the  husband  for  himself  and  wife  jointly,  was 
overruled.  {Bleeker  and  wife  v.  Bingham,  3  Paige,  246.  King  v. 
WhMy^  10  id.  465.) 

No  technical  form  of  words  is  necessary  to  create  a  trust  for  the 
separate  use  of  a  married  woman.  If  the  property  be  vested  in  a 
trustee,  and  the  trust  declared  to  be  for  her  sole  use  and  benefit,  and 
the  money  to  be  paid  to  her  individually,  it  is  equivalent  to  provid- 
ing for  payment  to  the  wife  upon  her  separate  receipt,  and  to  exclude 
the  husband.     (Stuart  v.  Kissam,  2  Barb.  493.) 

Before  the  late  statutes  relative  to  the  estates  of  married  women, 
the  separate  estate  existing  in  the  wife  beyond  the  control  of  the 
husband,  was  subject  to  the  incidents  of  ownership.  In  regard  to 
such  property  she  was  treated  in  equity  as  a  feme  sole.  She  might 
dispose  of  it  without  the  solemnity  of  a  private  examination.  Such 
disposition  was  in  the  nature  of  an  appointment.  (Albany  Fire 
Ins.  Co.  V.  Bay,  4  Barb.  407  ;  S.  C.  on  appeal,  4  Comst.  9.)  She 
"  might  mortgage  it.  Her  receipt  given  to  the  executor,  upon  pay- 
ment of  a  legacy  absolutely  belonging  to  her,  as  her  separate  prop- 
erty, was  a  good  discharge.     (Guild  v.  Peck,  11  Paige,  475.) 

Having  a  separate  estate  subject  to  her  own  disposal,  she  might 
give  it  to  her  husband,  as  well  as  to  any  other  person,  if  her  dispo- 
sition of  it  was  free,  and  not  the  result  of  flattery  or  force,  or  im- 
proper treatment.     (Cruger  v.  Cruger,  5  Barb.  226.) 

Her  separate  estate  was  not  liable,  at  common  law,  for  her  debts 
contracted  before  marriage ;  and  the  only  ground  upon  which  it 
could  be  reached  in  equity,  was  that  of  appointment ;  that  is,  some 
act  of  hers,  after  marriage,  indicating  an  intention  to  charge  the 
property.     (  Vanderheyden  v.  Mallory,  1  Comst.  452.) 

The  common  law  cast  upon  the  husband  a  temporary  liability  for 
the  debts  of  the  wife  contracted  before  marriage.     This  liability 


mSURANCE  OF  HUSBAND'S  LIFE,  FOR  WIFE.  295 

ceased  with  the  coverture,  unless  judgment  had  been  recovered 
against  both.  If  the  wife  survived  the  husband,  and  judgment  had 
not  been  recovered,  her  sole  liability  revived.  Hence  her  private 
property  could  not  be  reached  for  such  antecedent  debts.  But 
when  a  debt  was  contracted  by  a  woman  during  coverture,  either 
for  herself  or  as  surety  for  her  husband,  this  was  prima  facie  evi- 
dence of  an  appointment,  or  appropriation  of  her  separate  estate  to 
the  payment  of  the  debt.  {Id.  S.  C.  3  Barh.  Ch.  9.)  These  prin- 
ciples were  somewhat  modified  by  the  act  of  1853,  chapter  576. 
Now,  an  execution  upon  a  judgment  against  husband  and  wife,  for 
the  debt  of  the  wife  contracted  before  marriage,  binds  only  the  sepa- 
rate estate  and  property  of  the  wife  ;  and  the  husband  is  no  longer 
liable  for  the  debts  of  the  wife  contracted  before  marriage,  only  to 
the  extent  of  the  property  acquired  by  the  marriage. 

The  tendency  of  the  legislation  in  this  state  has  been  for  many 
years  in  favor  of  increasing  the  provision  which  the  common  law 
made  for  married  women  and  for  widows.  Our  exemption  laws,  the 
acts  of  1848,  1849  and  1860,  and  those  concerning  the  administra- 
tion of  the  estates  of  deceased  persons,  are  examples  of  this  tendency. 
These  have  already  been  sufficiently  noticed. 

In  1840,  in  furtherance  of  the  same  policy,  it  was  made  lawful  for 
any  married  woman,  by  herself,  and  in  her  name,  or  in  the  name  of 
any  third  person,  with  his  assent,  as  her  trustee,  to  cause  to  be  insured, 
for  her  sole  use,  the  life  of  her  husband,  for  any  definite  period,  or 
for  the  term  of  his  natural  life ;  and  in  case  of  her  surviving  her  hus- 
band, the  sum  or  net  amount  of  the  insurance  becoming  due  and 
payable,  by  the  terms  of  the  insurance,  required  to  be  made  payable 
to  her,  to  and  for  her  own  use,  free  from  the  claims  of  the  represent- 
atives of  the  husband,  or  of  any  of  his  creditors ;  but  such  exemp- 
tion was  not  to  apply  when  the  amount  of  the  premium  annually 
paid  should  exceed  three  hundred  dollars.  In  case  of  the  death  of 
the  wife,  before  the  decease  of  her  husband,  the  amount  of  the  in- 
surance, it  was  provided,  might  be  made  payable,  after  her  death,  to 
her  children  for  their  use,  and  to  their  guardian,  if  under  age. 

This  modification  of  common  law  rules  in  favor  of  man-ied  wo- 
men was  equivalent  to  a  marriage  settlement,  to  the  extent  of  the 
sum  limited  by  the  act.  It  was  a  beneficent  provision  which  thus 
enabled  her  or  her  friends  to  place  a  certain  sum  beyond  the  reach 
of  the  husband's  creditors,  in  case  he  should  be  insolvent  when  he 
died.     But  the  act  of  1840  was  not  based  on  the  supposition,  that 


296  OF  MERGER. 

the  premium  on  the  policy  of  insurance  was  to  come  in  any  case 
from  the  estate  of  tlie  husband.  If  it  was  supplied  from  her  sepa- 
rate property,  or  from  any  other  source  than  from  her  husband's 
estate,  his  creditors  had  no  equity  to  it.  But  it  was  obvious  that 
in  most  cases  the  premium  would  be  paid  by  the  husband.  If  an 
insolvent  should  take  the  funds,  which  in  justice  belong  to  his  cred- 
itors, and  employ  them  in  effecting  an  insurance  upon  his  life  for  the 
benefit  of  his  wife  and  children,  the  law  would  follow  the  fund  on 
the  death  of  the  husband  and  make  it  available  to  the  payment  of 
his  debts,  upon  the  principle  that  every  man  should  be  honest  be- 
fore he  is  generous.  As  between  his  wife  and  children  and  other 
kindred  of  the  deceased,  the  provision  of  the  statute  would  be  sus- 
tained in  favor  of  the  former,  whatever  might  be  the  case  between 
them  and  his  creditors. 

The  act  of  1858,  ch.  187,  p.  306,  removed  some  of  the  difficulties 
which  have  been  suggested,  and  extended  this  exemption  of  the  in- 
surance to  all  cases  where  the  premium  annually  paid  out  of  tho 
funds  or  property  of  the  husband  shall  not  exceed  three  hundred 
dollars.  This  is,  in  effect,  withdrawing  so  much  more  of  the  estate 
of  a  deceased  person  from  the  claims  of  creditors  in  favor  of  the 
widow  and  children.  If  the  annual  premium  paid  out  of  the  estate 
of  the  husband  exceeds  three  hundred  dollars,  it  is  not  protected  by 
the  statute,  from  the  claims  of  the  representatives  and  creditors  of  the 
husband.  But  if  the  premium  does  not  come  from  the  estate  of  the 
husband,  his  representatives  or  creditors  have  no  just  title  to  it. 


CHAPTER  IV. 

OF    MERGER. 

The  subject  of  merger  has  been  adverted  to  in  several  places  in 
this  treatise ;  but  its  imjwrtance  and  the  intricacy  of  the  doctrine 
seem  to  justify  a  more  full  discussion  of  it  in  a  separate  chapter. 

It  is  not  easy  to  give  the  definition  of  merger.  Cases  may  easily 
be  put  in  which  it  takes  place ;  but  that  is  rather  a  description  of 
its  effect  than  a  definition  of  the  term.  The  case  put  by  Blackstone 
is  an  apt  illustration  of  the  rule.  Whenever,  he  says,  a  greater 
estate  and  a  less  coincide  and  meet  in  one  and  the  same  person,  without 


MERGER.  297 

any  intermediate  estate,  the  less  is  annihilated  or  is  said  to  he  merged, 
that  is,  sunk  or  drowned  in  the  greater.     (2  Black.  Com.  YJI.) 

Merger  is  tlie  act  of  the  law,  hy  which  the  less  of  two  vested 
estates  is  extinguished,  hy  uniting  in  the  same  person  in  the  same 
right,  without  any  intermediate  estate.  The  ohject  is  to  accelerate 
the  estate  in  which  the  merger  takes  place.  The  estate  in  which, 
the  merger  takes  place  is  not  enlarged  by  the  accession  of  the 
preceding  estate.  After  the  merger,  the  only  subsisting  estate 
continues  precisely  of  the  same  quantity  and  extent  of  ownership 
as  it  was  before  the  accession  of  the  estate  which  was  mersred 
Thus  if  the  owner  of  the  reversion  in  fee,  depending  on  an  estate 
for  years,  acquires  the  title  of  the  tenant  for  years,  the  two  estates 
are  blended  into  one.  The  estate  of  the  reversioner  in  fee  is 
not  enlarged,  because  he  has  still  only  a  fee,  but  the  possession  is 
accelerated  by  the  annihilation  of  the  estate  for  years.  He  is  not 
said  to  have  a  fee  simple  and  an  estate  for  years,  but  a  fee  simple 
only,  with  the  right  of  immediate  enjoyment. 

We  cannot,  in  a  single  chapter,  discuss  at  much  leugth  the  doc- 
trine of  merger.  It  has  been  very  fully  treated  by  Mr.  Preston  in 
his  treatise  on  merger,  to  which  we  are  greatly  indebted  for  the  fol- 
lowing pages  on  this  subject.  We  shall  therefore  bring  together,  in 
successive  sections,  some  of  the  leading  principles  on  the  subject, 
and  incorporate  with  them  such  decisions  of  our  own  courts  as  may 
seem  to  be  material. 

Section  I. 

Of  the  difference  behveen  Merger  and  certain  Acts  of  Law 
analogous  to  it. 

There  were  at  common  law  five  different  acts  of  law,  which  resem- 
bled each  other  in  many  respects,  but  which  were  still  distinguishable 
from  each  other.  They  were  merger,  suspension,  extinguishment, 
discontinuance  and  remitter. 

Merger,  we  have  already  seen,  is  the  extinguishment  by  act  of 
law  of  one  estate  in  another,  by  the  union  of  the  two  estates  in  the 
same  person,  in  the  same  right,  without  any  intermediate  estate. 
The  term  estate  in  this  definition  must  be  understood  in  its  technical 
meaning ;  as  being  the  interest  which  one  has  in  lands,  or  other 
property,  rather  than  the  land  itself  In  this  sense  it  is  nearly  sy- 
nonymous with  the  words  rights  title  and  interest.     The  word  ia 


298  SUSPENSION"— REMITTER. 

often  used  in  a  broader  sense,  as  denoting  the  corpus.     Tims,  a  man 
speaks  of  his  funn  as  being  his  estate. 

Extinguishment  is  the  annihilation  of  a  collateral  thing  or  sub- 
ject, in  the  subject  itself  out  of  which  it  is  derived.  Thus,  a  rent 
may  be  extinguished.  A  common  may  be  extinguished.  Extin- 
guishment is  sometimes  confounded  with  merger,  but  they  are  dis- 
tinguishable. Merger  is  only  a  mode  of  extinguishment ;  and  ap- 
plies to  estates  only  under  particular  circumstances.  But  extin- 
guishment is  a  term  of  general  application  to  rights  as  well  as  estates. 
(Crabhe  on  Ileal  Prope7^fy,  §  1488.) 

Susjjension  is  a  partial  extinguishment,  or  extinguishment  for  a 
time. 

Discontinuance  is  defined  by  Preston  to  be  the  cesser  of  a  seisin 
under  one  estate  and  the  acquisition  of  a  seisin  under  a  new,  and 
necessarily  a  wrongful  act.  It  occurred  wdiere  a  tenant  in  tail  cre- 
ated a  larger  estate  in  the  land  than  he  was  by  law  entitled  to.  It 
operated  to  take  away  the  right  of  entry,  and  put  the  issue  or  those 
in  remainder  to  the  necessity  of  bringing  a  real  action.  (3^/.  Corn, 
167.)  This  species  of  title  does  not  exist  in  this  state,  or  in  this 
country ;  and  it  is  substantially  abolished  in  England  by  3  and  4 
Will.  4,  ch.  27,  §  39. 

Remitter  is  the  act  of  the  law  which  puts  an  end  to  the  seisin 
under  the  wrongful  and  new  acquired  title,  and  restores  the  rightful 
owner  to  the  ancient  seisin  and  better  title.  Remitter  is  the  same 
in  effect,  as  to  rigJits  andtitles,  which  merger  is  as  to  estates,  and  ex- 
tinguishment is  of  things.  The  doctrine  of  remitter  proceeds  on  the 
ground  that  the  possession  is  cast  on  an  innocent  person,  who  has  an 
existing  title  to  the  possession ;  or  that  the  freehold  is  cast  on  a 
person  who  has  a  right  which  is  remediable,  and  who  has  done  no 
act  by  which  he  has  estopped  himself  to  insist  on  his  ancient  title ; 
and  then  as  often  as  the  possession,  where  the  entry  is  lawful,  or  the 
immediate  freehold,  when  the  right  is  remediable,  devolves  to  that 
person  by  act  of  law,  or  is  vested  in  him  by  the  act  of  the  parties, 
without  his  concurrence  or  voluntary  consent,  or  at  a  time  when  that 
person,  (as  in  the  case  of  an  infant,  feme  covert,  &c.)  is  under  an 
incapacity  of  giving  assent  to  any  act  which  would  be  prejudicial, 
the  law  does  of  itself  restore  the  party  to  that  estate  to  which  he 
tad  a  subsisting  right  of  possession  at  the  time  when  he  entered,  or 
a  subsisting  right  of  action  at  the  time  when  the  freehold  devolved 
on  him.     A  remitter,  when  it  operates,   universally  supplies  the 


ORIGIN  OF  MERGER.  299 

place  of  an  entry,  when  an  entry  is  lawful ;  and  of  an  action  when 
an  action  might  be  maintained.  (Presto7i  on  Merger,  12,  13.)  It 
redresses  the  injury  done  to  the  person  in  whom  the  right  resides, 
by  putting  him  into  possession,  or  obtaining  for  him  seisin  of  the 
freehold  under  his  rightful  title,  in  the  same  manner,  and  to  the 
same  extent,  as  he  could  restore  himself  to  his  estate  by  means  of  an 
entry,  or  an  action.     {Id.) 

The  difference  between  remitter  and  merger  may  be  thus  concisely 
stated.  Remitter  revives  the  seisin  under  the  ancient  title,  in  favor 
of  the  person  in  whom  the  possession  of  the  freehold  becomes  vested, 
under  a  defeasible  estate.  Merger,  on  the  contrary,  puts  an  end  to 
a  subsisting  estate,  though  held  by  a  good  title,  and  it  accelerates 
the  right  of  possession  under  a  remote  estate,  residing  in  the  same 
person.  {See  Co.  Lift.  347  b;  Litt.  §  659  e^  seq.;  Preston  on  Mer- 
ger, 14.) 

Section  II. 
Of  the  Origin  of  Merger,  and  of  the  Effect  of  Intention  upon  it. 

It  is,  perhaps,  impossible  to  trace  the  doctrine  of  merger  to  its  or- 
igin ;  or  to  assign  it  to  any  one  princij)le  to  which  there  may  not  be 
some  exceptions.  The  most  obvious  reason  is  that  which  results 
from  the  maxim,  Nemo  potest  esse  dominus  et  tenens.  This  is  sub- 
ject to  fewer  objections  than  any  other  one  principle  which  has  been 
given  as  the  foundation  of  the  doctrine.  This  applies  to  actions 
and  causes  of  actions  as  well  as  to  estates.  A  man  cannot  be  plain- 
tiff and  defendant  in  the  same  matter,  any  more  than  he  can  be 
both  landlord  and  tenant  of  the  same  estate.  If  by  the  course  of 
the  transaction  between  parties,  the  estate  of  the  tenant  is  vested  in 
that  of  the  landlord,  it  is  extinguished  or  rather  merged  in  that  of 
the  larger  estate.  If  the  owner  of  the  fee  simple,  having  granted  an 
estate  for  years,  should  afterwards,  during  the  continuance  of  the 
estate  for  years,  succeed  to  the  latter  estate  by  operation  of  law  or 
purchase,  with  no  intervening  estate,  a  merger  would  take  place  of 
the  estate  for  years  in  the  estate  of  inheritance.  The  owner  of  the 
fee  simple  would  thus  become  landlord  and  tenant.  He  would  be 
entitled  to  the  rent  and  the  benefit  of  the  other  covenants  in  the 
lease,  and  be  at  the  same  time  the  person,  by  whom  that  rent  was 
to  be  paid,  and  these  covenants  are  to  be  performed.     The  law  deals 


300  EXTINGUISHMENT. 

more  wisely  when  it  extinguishes  the  less  estate  in  the  greater,  by 
the  doctrine  of  merger,  than  by  keeping  up  incompatible  relations. 

In  the  Touchstone  (p.  300)  merger  is  treated  as  a  surrender  in 
law.  When  the  immediate  effect  of  a  conveyance  corresponds  to  a 
surrender,  the  instrument  must  be  pleaded  as  a  surrender,  and  not  in 
the  words  in  which  the  intention  is  expressed.  In  short,  says  Mr, 
Preston,  there  is  not  any  case  in  which  merger  will  take  place,  un- 
less the  right  of  making  and  accepting  a  surrender  resides  in  the 
several  persons  between  whom  the  transaction  which  causes  the  de- 
termination of  one  of  these  estates,  takes  place. 

The  effect  of  a  surrender  is  not  always  the  same  as  that  of  mer- 
ger. If  the  lessee  for  life  make  a  lease  for  years  rendering  rent,  and 
afterwards  the  lessee  for  life  surrender  his  estate  ;  in  this  case,  albeit 
the  primitive  estate  for  life  be  yielded  up,  yet  the  derivative  estate 
for  years  shall  continue  notwithstanding  ;  but  the  surrenderee  shall 
not  have  the  rent  reserved  upon  the  lease  for  years.  So  if  lessee  for 
life  or  years  break  a  covenant  with  his  lessor,  and  after  surrender  his 
estate  to  him,  his  breach  of  covenant  is  not  thereby  saved,  for  the 
lessor  may  have  an  action  of  covenant  still,  notwithstanding  the  sur- 
render. {Touchstone,  301.)  If,  therefore,  the  lessee  for  life  desires 
not  only  to  surrender  his  estate  to  the  lessor,  but  also  to  transfer  the 
rent  due  and  to  become  due  to  him  from  the  tenant  for  years,  there 
should  not  only  be  a  surrender  of  the  life  estate,  but  an  assignment 
to  the  primitive  lessor  of  the  lease  for  years.  It  is  probable  that  a 
grant,  under  the  revised  statutes,  by  the  tenant  for  life  to  the  orig- 
inal lessor  of  all  his  estate  in  the  premises,  and  of  the  lease  for  years 
granted  by  him,  and  the  rent  due  and  to  become  due  thereon,  would 
operate  as  a  surrender  of  the  primitive  lease,  and  an  assignment  of 
the  derivative  one  to  the  original  lessor. 

Section  III. 

Of  the  Extinguishment  of  the  equitable  in  the  legal  estate,  and  of  a 
simple  contract  in  a  specialty  or  judgment,  fregueiitly  denomi- 
nated Merger. 

We  have  pointed  out,  in  a  previous  section,  the  difference  between 
merger  and  extinguishrnent,  showing  that  the  former  relates  to 
estates  only,  while  the  latter  is  a  term  of  general  application  to 
rights  as  well  as  estates.  The  union  of  the  legal  and  equitable 
estate  in  the  same  person  and  in  the  same  right,  operates  as  an  ex- 


MEKGER— APPORTIONMENT.  301 

tinguishmerit  of  the  equitable  estate.  For  the  doctrine  of  merger, 
technically  speaking,  it  is  essential  that  the  several  estates  consoli- 
dated by  merger  should  be  all  legal  or  all  equitable;  and  this 
whether  the  union  be  by  act  of  the  law  or  act  of  the  party.  {Den 
V.  Van  Ness,  5  Halst.  102.)  Merger  is  a  mode  of  extinguishment. 
The  two  are  often  confounded  together ;  and  our  judges  have  not 
always  been  careful  to  distinguish  the  one  from  the  other.  They 
have  frequently  used  indiscriminately  the  term  merger  and  extin- 
guishment as  meaning  the  same  thing.  And  they  have  generally 
denominated  the  union  in  one  person  of  the  equitable  with  the  legal 
estate,  as  a  merger  of  the  former  in  the  latter.  In  this  sense  a  more 
enlarged  and  popular  signification  is  given  to  the  term  merger,  than 
is  strictly  appropriate.  It  does  not,  however,  occasion  any  essential 
difficulty  in  the  discussion  of  principles.  Using  the  term,  therefore, 
as  oar  own  judges  have  used  it,  we  shall  proceed  to  notice  the  appli- 
cation of  the  doctrine  to  the  cases  mentioned  at  the  head  of  this 
section. 

At  an  early  day,  the  chancellor,  in  NicJiohon  v.  Hallett,  (1  John. 
Ch.  422,)  said  that  it  is  a  settled  principle  that  when  the  legal  and 
equitable  estates,  being  coextensive,  unite  in  the  same  person,  the 
equitable  estate  is  merged  in  the  legal,  and  may  be  said  no  longer 
to  exist  for  the  purpose  of  being  recognized  and  acted  upon  by  the 
court.  The  legal  estate  is  left  to  prevail  according  to  the  rules  of 
law.  Thus,  if  the  legal  estate  in  fee  descends,  ex  j^cirte  materna, 
and  the  equitable  estate  in  fee,  ex  jocirfe  j^derna,  the  equitable  estate 
is  merged  in  the  legal,  and  both  go  in  the  line  of  descent  of  the  legal 
estate.  That  the  union  of  the  legal  and  equitable  estates  in  one 
person  in  the  same  right  leads  in  general  to  the  merger  of  one  in  the 
other,  was  the  settled  doctrine  as  well  of  the  courts  of  law  as  of 
equity.     {Roberts  v.  Jackson,  1    Wend.  484.     James  v.  Moivry, 

2  Coioe'Q,,  246.)     The  term  extinguishment  is  sometimes  used,  but 
not  as  conveying  any  different  idea  from  that  of  merger. 

The  effect  of  the  doctrine  sometimes  leads  to  an  apportionment 
of  an  incumbrance.  Thus,  if  a  tenant  in  fee  acquires  a  moiety  of 
the  rent  and  reversion,  the  lease  and  rent  are  merged  pro  tanto. 
{Lansing  v.  Paine,  4  Paige,  639.)  On  the  same  principle,  if  an 
undivided  half  of  land  upon  which  an  annuity  for  A.  is  charged,  is 
cast  upon  B.  by  descent,  the  half  of  the  annuity  chargeable  upon 
his  share  of  the  land  is  thereby  merged.     {Jenkins  v.  Van  ScJiaick, 

3  Paige,  242.) 


302  KULE  IN  EQUITY. 

The  doctrine  under  consideration  is  more  frequently  exemplified 
in  the  case  of  mortgage  securities  than  in  cases  of  landlord  and  ten- 
ant.  The  rule  is  inflexible,  at  law,  that  when  a  greater  estate  and 
a  less  meet  and  coincide  in  the  same  person,  in  one  and  the  same 
right,  without  any  intermediate  estate,  the  less  estate  is  immediately 
annihilated  ;  or  in  the  law  phrase  is  said  to  be  merged.  This  doc- 
trine was  applied  to  the  vesting  of  a  mortgage  security  in  the  owner 
of  the  equity  of  redemption.     {James  v.  Moivry,  2  Cowen,  246.) 

It  becomes  important,  to  those  dealing  with  real  estate,  to  know 
when,  and  under  what  circumstances,  the  rule  of  law  will  be  relaxed 
and  the  equitable  estate  be  permitted  to  subsist,  notwithstanding 
its  apparent  union  with  the  legal  estate.  At  law,  we  have  seen  that 
the  rule  is  inflexible  that  the  equitable  merges  in  the  legal  estate. 
In  equity  this  rule  is  not  inflexible,  though  in  general  equity  follows 
the  law  in  this  respect. 

The  qualification  of  the  rule  by  means  of  which  courts  of  equity 
will  keep  alive  a  security,  which,  at  law,  would  be  merged  or  extin- 
guished, depends  on  the  concurrence  of  two  things,  1,  the  intention 
of  the  party,  and  2d,  the  existence  of  some  fact  or  circumstance 
showing  that  it  would  be  beneficial  to  the  one  party  and  not  injuri- 
ous to  any  body  to  continue  it  as  a  subsisting  security.  In  Gard- 
ner V.  Adams,  (3  John.  Ch.  53,)  a  party  purchased  the  equity  of 
redemption  of  certain  mortgaged  premises,  and  afterwards  })aid  off 
the  mortgage  and  took  an  assignment  of  it  to  himself  It  thus  be- 
came merged  at  law.  He  afterwards  sold  the  premises  to  the  de- 
fendant by  a  deed,  with  full  covenants  of  warranty,  seisin  and  against 
incumbrances ;  and  at  a  later  day,  being  still  in  possession  of  the 
mortgage,  he  assigned  it  to  the  plaintiff's  intestate  for  a  valuable 
consideration.  The  administrator  sought  to  foreclose  the  mortgage, 
thus  treating  it  as  a  subsisting  security.  This  was  resisted  by  the 
defendant  on  the  ground  that  the  mortgage  had  merged  in  the  legal 
estate  and  was  therefore  extinguished.  The  defendant,  in  his  an- 
swer, alleged  that  he  purchased  the  premises  with  the  full  assur- 
ance that  they  were  free  from  incumbrances,  and  had  no  knowledge 
or  suspicion  that  the  mortgage  was  a  subsisting  lien.  The  court 
held  that  there  was  no  reason  in  the  case  for  keeping  the  two  estates 
distinct ;  and  that  the  owner  of  the  equity  of  redemption  when  he  paid 
off  and  took  an  assignment  of  the  mortgage,  did  so  for  the  purpose  of 
payment,  and  that  the  same  was,  by  that  act,  extinguished.  In 
this  case  it  is  obvious  that  had  the  court  kept  alive  the  security,  it 


UTILE  m  EQUITY.  303 

would  have  been  aiding  one  of  tlie  parties  to  practice  a  fraud  on  the 
other.  Had  the  purchaser  exercised  more  caution  he  would  have 
caused  a  search  to  he  made  for  incumbrances  and  had  the  mortgage 
discharged  of  record.  That  would  probably  have  saved  him  from 
the  litigation.  He  did  no  act,  however,  that  deprived  him  of  the 
benefit  of  the  legal  principle  that  the  mortgage  was  merged. 

The  same  doctrine  was  repeated  in  Starr  v.  ElUs,  (6  JoJin.  Gh. 
393.)  The  chancellor  said  that  a  court  of  equity  will  keep  an  in- 
cumbrance alive,  or  consider  it  extinguished,  as  will  best  serve  the 
purposes  of  justice,  and  the  actual  and  just  intention  of  the  party. 
It  must  at  all  events  be  an  innocent  purpose  and  injurious  to  no  one. 

This  is  the  doctrine  of  the  English  courts  of  equity.  In  Forbes 
.  V.  Moffatt,  (18  Ves.  384,)  the  master  of  the  rolls  said  "  that  a  per- 
son entitled  to  an  estate,  subject  to  a  charge  for  his  own  benefit,  may, 
if  he  chooses,  at  once  take  the  estate,  and  keep  up  the  charge.  A 
court  of  equity  will  sometimes  hold  a  charge  extinguished  when  it 
would  subsist  at  law ;  and  sometimes  preserve  it,  when,  at  law,  it 
would  be  merged.  In  such  instances,  it  is,  with  reference  to  the 
party  himself,  of  no  sort  of  use  to  have  a  charge  on  his  own  estate ; 
and  when  this  is  the  case,  it  will  be  held  to  sink,  unless  something 
shall  be  done  by  him  to  keep  it  on  foot.  If  it  be  perfectly  indifferent 
to  the  party  whether  the  charge  should  or  should  not  subsist,  it 
sinks."     {See  also  Lord  Comj-yton  v.  Oxenden,  2  Ves.jun.  261.) 

The  subject  was  again  most  thoroughly  discussed  by  the  counsel 
and  the  court,  in  the  case  o^  James  v.  31owry,  decided  in  1823,  in 
the  late  court  of  errors.  (2  Coiven,  246.)  That  case  came  up  on 
appeal  from  the  court  of  chancery,  where  it  had  been  decided  by  the 
late  Chancellor  Kent.  (6  JoJm.  Ch.  420-434.)  The  doctrine  of  the 
two  courts  was  not  essentially  variant  on  questions  of  law,  as  will  be 
seen  by  comparing  the  several  opinions  delivered  in  the  case.  It 
must  be  considered  as  decisively  settled  in  this  case,  that  the  doctrine 
of  merger,  as  stated  above  at  page  300,  is  the  law  of  this  state  :  that 
the  rule  is  inflexible  at  law,  but  in  equity  is  not  so,  but  depends  on 
the  expressed  or  implied  intention  of  the  person  in  whom  the  estates 
unite,  whether  the  equitable  estate  shall  merge,  or  still  be  kept  in 
existence.  If  such  person  be  an  infant,  or  labor  under  any  incapa- 
city to  make  an  election,  a  court  of  equity  will  keep  the  equitable 
estate  on  foot.  So  also  when  it  is  for  the  interest  of  the  person  in 
whom  these  estates  unite,  the  law  will  imply  an  intention  to  prevent 
a  merger,  provided  no  injustice  be  done  thereby  to  other  parties. 


304  EXTINGUISHMENT. 

It  is  not  essential  to  the  law  of  merger,  as  administered  in  this 
state,  that  the  mortgagee  should  have  acquired  the  legal  title  to  the 
•whole  premises  covered  by  the  mortgage.  If  he  purchases  and  takes 
a  release  of  the  equity  of  redemption  in  a  part  of  the  mortgaged 
premises,  the  mortgage  is  extinguished  pro  tanto ;  and  may  be  ap- 
portioned between  the  party  as  to  which  it  is  extinguished  and  the 
party  in  relation  to  which  it  exists.  {James  v.  Moivry,  supra.)  This 
too  is  subject  to  the  general  rule,  with  respect  to  intention,  conven- 
ience and  interest  of  the  parties.  It  is  competent  for  the  mortgagee 
to  release  to  the  mortgagor  the  equity  of  redemption  to  a  part  of  the 
mortgaged  premises,  and  leave  the  mortgage  a  subsisting  security 
for  the  whole  debt  upon  the  residue.  If  such  was  the  intention  of 
the  parties,  it  will  be  carried  into  effect.  There  need  be  no  appor- 
tionment when  the  release  is  voluntarily  given. 

In  equity  a  prior  mortgage  cannot  be  merged  in  the  subsequently 
acquired  legal  title  to  the  equity  of  redemption,  where  there  is  an 
intermediate  mortgage.  {Millspaugli  v.  McBride,  7  Paige,  509. 
Skeel  V.  Spraker,  8  id.  182.) 

We  shall  bring  this  subject  to  a  close  by  noticing  some  cases  of 
extinguishment,  frequently  confounded  with  merger  and  called  by 
that  name,  in  addition  to  those  already  mentioned.  This  doctrine 
applies  to  the  acceptance  of  a  higher  security  by  a  creditor  for  his 
debt,  by  means  of  which  the  original  demand  is  extinguished.  Thus, 
if  a  creditor  by  simple  contract  accepts  an  obligation  under  seal  for 
his  debt,  the  original  simple  contract  debt  is  thereby  extinguished. 
The  reason  of  this  is  that  the  obligation  under  seal  is  of  a  higher 
nature  than  the  simple  contract.  {The  Bank  of  Columbia  v.  Pat- 
terson's Adm'r,  7  CrancJi,  299.) 

It  is  on  the  principle  of  extinguishment,  that  a  valid  award  made 
by  arbitrators  is  a  bar  to  a  suit  for  the  original  cause  of  action. 
(Coleman  v.  Wcide,  2  Selden,  44.) 

In  Clark  v.  RoiuUng,  (3  Comst.  216,)  it  was  held  that  a  judgment 
upon  a  simple  contract  operated  to  extinguish  it ;  but  not  so  as  to 
prevent  a  court  of  equity  from  looking  behind  the  judgment  and  see 
upon  what  it  was  founded.  The  learned  judge  in  this  case  applied 
the  terms  merger  and  extinguishment,  indiscriminately,  as  desciip- 
tive  of  the  effect  of  the  judgment  upon  the  simple  contract. 

Whether  the  debtor's  promissory  note  will  extinguish  the  original 
demand  for  which  it  was  given,  depends  on  circumstances.     If  it  be 


EXTINGUISHMENT.  305 

not  negotiable,  it  is  of  no  higher  nature  than  the  original  demand. 
No  extinguishment  or  merger  can  take  place  when  both  securities 
are  of  the  same  quality  or  degree,  {Hill  v.  Beebe,  3  Kernan,  564.) 
This  doctrine  applies  to  chattel  mortgages ;  one  chattel  mortgage  is 
not  an  extinguishment  of  another.  Nor  is  a  judgment  recovered  on 
a  covenant  for  the  payment  of  rent  an  extinguishment  of  the  rent, 
unless  the  judgment  be  satisfied.  {Chipman  v.  Martin,  13  John. 
240.)  No  other  action  could  indeed  be  brought  upon  the  covenant 
while  the  first  judgment  remains  in  force ;  and  in  this  sense,  the 
original  cause  of  action  is  said  to  be  merged  or  extinguished  in  the 
judgment.  But  the  remedy  by  distress  under  the  lease,  while  that 
remedy  was  in  force,  was  of  as  high  a  nature  as  the  judgment.  It 
is  still  so  now,  though  the  remedy  by  distress  is  abolished  ;  the  land 
being  in  a  measure  still  held  for  the  rent. 

When  a  collateral  security,  in  the  form  of  a  note  executed  by  a 
judgment  debtor  and  his  surety,  is  itself  got  into  a  judgment  and 
collected  of  the  surety  on  execution,  the  original  judgment  to  which 
such  note  was  collateral  is  thereby  extinguished,  and  no  effectual 
sale  of  the  debtor's  property  can  be  made,  even  on  an  execution  is- 
sued previous  to  the  payment  of  the  second  judgment.  {Croft  v. 
Merrill,  4  Kernan,  456.) 

The  question  sometimes  arises,  after  a  deed  has  been  executed  and 
delivered  in  pursuance  of  an  executory  contract,  whether  the  latter 
is  extinguished.  If  such  contract  provided  only  for  the  delivery  of 
a  deed,  and  it  be  made  and  delivered  according  to  the  terms  speci- 
fied therein,  it  is  plain  that  the  latter  is  discharged  or  extinguished. 
Full  performance  is  all  that  can  be  required,  and  that  is  a  satisfac- 
tion of  the  contract.  But,  it  often  happens,  that  the  executory 
contract  contains  other  stipulations,  relative  to  collateral  matters. 
These  are  not  necessarily  affected  by  the  delivery  of  a  deed.  In 
Witbeck  V.  Waine,  (2  Smith,  532,)  the  executory  contract  for  the 
sale  of  land  provided  for  an  increase  or  rebate  of  the  purchase  mon- 
ey in  proportion  to  any  excess  or  deficiency  which  might  exist  in  the 
quantity  of  the  land ;  this  was  held  to  remain  in  force,  after  the  ex- 
ecution and  delivery  of  the  deed.  In  Bogart  v.  Burkhalter,  (1  De- 
nio,  125,)  the  preliminary  contract  for  the  sale  of  land  contained  an 
agreement  that  the  vendee  should  erect  a  particular  description  of 
building  on  the  premises,  and  would  not  erect  any  thing  thereon 
which  should  be  a  nuisance  to  the  adjoining  property.     It  was  held 

WILL.-20  ^1     r     J 


306  WHAT  IS  ESSENTIAL  TO  MERGER. 

that  the  vendee  could  maintain  an  action  for  a  breach  of  this  agree- 
ment, though  before  the  acts  complained  of  he  had  conveyed  the 
land  to  the  vendee. 

It  is  competent  to  the  parties,  in  carrying  out  their  executory 
agreement,  to  deviate  from  it ;  to  waive  any  of  its  stipulations ;  and 
to  substitute  others.  When  a  deed  has  been  given  in  pursuance  of 
a  preliminary  contract  for  the  sale  of  the  land,  containing  stipula- 
tions of  which  the  conveyance  itself  is  not  the  performance,  it  is, 
therefore,  a  question  of  intention  whether  the  parties  have  surrender- 
ed those  stipulations.  In  the  absence  of  all  proof,  there  is  no  pre- 
sumption that  either  party  intends  to  give  up  the  benefit  of  cove- 
nants of  which  the  conveyance  is  not  a  performance  or  satisfaction. 
In  Morris  v.  WhitcJier,  (6  Smith,  41,)  a  stipulation  in  the  execu- 
tory contract  that  the  vendor  should  retain  possession  for  a  specified 
period,  was  held  not  to  be  merged  or  extinguished  by  the  conveyance, 
but  admissible  in  evidence  to  qualify  its  operation,  and  to  defeat  an 
action  for  the  possession  by  a  subsequent  grantee  with  notice.  {See 
also  Drinker  v.  Byers,  2  Femi.  R.  528.) 

Section  IV. 
Of  the  Circumstances  indispensable  to  Merger. 

The  first  circumstance  which,  from  the  terms  of  the  definition, 
appears  to  be  essential  to  a  merger  is,  that  there  must  be  two  or 
more  estates,  which  meet  in  the  same  person,  in  the  same  lands,  &c. 
or  in  some  part  of  the  same  lands,  &c.  Unless  there  be  at  least  two 
estates,  there  is  no  occasion  for  a  merger.  A  mere  o^ight  or  title,  it 
is  said,  will  not  suffice.  The  case  put  to  illustrate  this  rule  by  Pres- 
ton is,  that  if  the  discontinuance  of  an  estate  tail,  by  the  granting 
an  estate  for  life,  by  tenant  in  tail,  and  his  death  without  issue,  in 
the  lifetime  of  the  tenant  for  life,  and  the  surrender  by  the  latter  to 
the  person  entitled  under  the  remainder  expectant  on  the  estate  tail, 
there  can  be  no  merger.  But  such  a  case  cannot  occur  in  our  prac- 
tice, and  therefore  the  ingenious  and  subtle  reasoning  on  which  it 
depends  need  not  be  repeated. 

The  question  will  rarely  arise  whether  a  man  has  one  estate  or 
two  estates  in  the  same  premises.  But  it  has  sometimes  occurred. 
Thus  in  Rosse's  case,  a  lease  was  made  to  A.  and  his  assigns  haben- 
dum to  him  for  his  life  and  for  the  lives  of  B.  and  0.  The  question 
was  whether  the  grant  during  the  life  of  B.  and  C.  was  void.     The 


MERGER.  307 

oLjection  was,  that  when  a  man  has  two  estates  in  him,  the  greater 
shall  drown  the  less,  and  that  an  estate  for  his  own  life  is  higher 
than  for  the  life  of  another ;  and,  therefore,  it  was  insisted  that  the 
estate  for  his  own  life  and  for  the  life  of  others  could  not  stand  to- 
gether. But  the  court  held  that  here  was  but  one  estate,  which  had 
this  limitation,  to  wit :  during  his  life  and  the  life  of  two  others, 
and  he  had  but  one  freehold,  and  therefore  there  could  not  be  any- 
drowning  of  estates  in  the  case,  but  he  had  an  estate  of  freehold  to 
continue  during  these  three  lives  and  the  survivor  of  them. 

In  commenting  on  this  case  Mr.  Preston  says  (3  Conv.  405,)  that 
if  the  lease  had  been  for  the  several  lives,  by  way  of  distinct  and 
successive  estates,  one  of  those  estates  might  have  merged  in 
another  of  those  estates.  The  ground  of  the  decision  was  that  the 
limitation  for  the  several  lives  gave  only  one  entire  estate,  and  not 
several  and  distinct  estates.  The  right  of  enjoyment  for  several 
lives  may  be  limited  to  the  same  person  by  the  same  deed,  and  yet 
a  merger  may  take  place.  Thus,  says  Preston,  a  lease  to  A.  for  the 
life  of  B.,  remainder  to  himself  for  his  own  life,  gives  several  and 
distinct  estates,  and  therefore  and  because  an  estate  in  remainder, 
which  is  for  his  own  life,  is  a  distinct  estate,  and  larger  than  the 
estate  for  the  life  of  B.,  the  estate  for  the  life  of  B,  will  merge  in 
the  estate  of  A,  for  his  own  life. 

If  Rosse's  case  had  occurred  in  this  state,  under  our  existing  laws, 
on  the  death  of  the  tenant  for  life,  the  estate  he  held  limited  on  the 
life  of  B.  and  C  would  have  gone  to  his  personal  representatives  un- 
der the  statute.  {2  R.  S.  82,  §  6,  suh.  1.)  The  estate  would  not 
have  terminated  on  his  death,  as  it  would  if  the  estates  limited 
upon  the  life  of  B,  and  C.  had  been  granted  as  distinct  estates,  by  way 
of  remainder,  on  the  death  of  the  tenant  for  life.  In  this  latter 
case,  as  the  several  remainders  would  have  merged  in  the  estate  for 
his  own  life,  there  would  be  nothing,  after  his  death,  to  go  to  his 
personal  representatives. 

It  is  to  be  noticed,  under  this  head,  that  the  several  estates  must 
meet  and  vest  in  the  same  person  and  in  the  sa7ne  right.  Several 
estates  in  distinct  persons  will  continue  several  and  distinct  interests. 

The  same  effect  will  follow  if  the  several  estates  be  held  by  the 
same  person  in  different  rights.  This  embraces  the  case  of  trustee 
and  cestui  que  trust,  of  executors  and  administrators,  and  of  husband 
and  wife. 

In  Hadley  v.  Chapin,  (11  Paige,  245,)  it  was  intimated  that  if 


308  MERGER. 

a  mortgagee  in  trust  acquires  the  equity  of  redemption,  the  mort- 
gage is  not  thereby  merged  in  equity.  A  court  of  equity  will  keep 
the  security  on  foot,  unless  the  purposes  of  justice  require  a  union 
of  the  two  estates. 

In  Gage  v.  Acton,  (1  Salk.  326,)  Lord  Holt  said  that  if  a  feme 
executrix  of  an  obligee  marries  the  obligor,  that  will  work,  no  ex- 
tinguishment, because  the  husband  is  to  receive  it  in  aute7'  ch'oit; 
it  would  be  a  devastavit  by  construction  of  law,  which,  being  a 
wrong,  cannot  be ;  so  if  a  man  hath  a  term  in  right  of  his  wife,  or 
as  executor,  and  purchases  the  reversion,  this  is  no  extinguishment, 
because  he  hath  the  term  in  one  right  and  the  i^eversion  in  another. 
In  that  case  the  difference  of  the  rights  hinders  an  extinguishment, 
because  a  third  person  is  concerned  and  may  be  prejudiced,  which 
cannot  be  by  act  of  law.  In  3  T.  B.  461,  Lord  Kenyon  is  reported 
to  have  said  generally,  without  any  distinction,  that  nothing  is 
clearer  than  that  a  term  taken  alienojure  is  not  merged  in  a  reversion 
acquired  suo  jure.  This  is  the  doctrine  of  Blackstone  in  2  Com.  177. 
But  the  correctness  of  the  above  opinions  is  questioned  by  Mr.  Pres- 
ton, in  his  treatise  on  merger.     (3  Prest.  277.) 

AVith  regard  to  husband  and  wife,  it  is  laid  down  by  Blackstone 
that  if  the  reversioner  marries  the  tenant  for  years  there  is  no  merger ; 
for  he  hath  the  inheritance  in  his  own  right,  the  lease  in  right  of  his 
wife.  (2  Black.  Com.  177.)  Mr.  Preston,  (supra,)  denies  this  to  be 
law,  and  cites  a  case  where  a  married  woman  became  entitled  to  a 
term  as  executrix,  and  the  husband  held  the  term  in  her  right,  and 
in  right  of  her  character  of  executrix,  he  purchased  the  inheritance ; 
and  it  was  held  that  the  term  was  merged  so  as  to  be  extinct  as 
to  the  wife,  if  she  survived,  though  in  respect  to  all  strangers  it 
should  be  accounted  assets  in  his  hands.  But  it  is  believed  that  the 
law  in  this  state  is  understood  as  expounded  in  Blackstone,  and  by 
Lord  Holt  and  Lord  Kenyon.  In  Cooper  v.  Whitney^  (3  Hill,  95,) 
it  was  intimated  by  the  judge  that  if  the  wife  acquire  an  equity  of 
redemption  by  deed,  and  the  forfeited  mortgage  be  assigned  to  the 
husband,  there  is  no  merger. 

In  James  v.  Mowry,  (2  Cowen,  284  and  300,)  the  judges  who  de- 
livered the  prevailing  opinions,  cite  the  doctrine  of  merger  from 
2  Black.  Ill,  without  qualification.  It  was  said  also  in  that  case 
that  when  it  is  for  the  interest  of  the  person  in  whom  the  two  estates 
unite  to  prevent  a  merger,  the  courts  will  keep  both  on  foot.  Un- 
der the  statutes  of  this  state,  in  relation  to  executors  and  adminis- 


MERGER  PRO  TANTO.  309 

trators,  and  with  respect  to  the  rights  of  married  women,  it  is  be- 
lieved that  a  married  woman,  acquiring  a  term  as  executrix,  would 
still  hold  it  on  the  death  of  her  husband,  though  he  purchased  the 
inheritance  in  his  lifetime. 

A  distinction  is  taken  by  Mr.  Preston  between  a  case  in  which  ati 
estate  in  one's  own  right  meets  in  an  estate  in  auter  droit,  occasioned 
b}^  the  act  of  the  lata  or  the  act  of  the  party.  If  the  union  is  occa- 
sioned by  the  act  of  the  law,  he  admits  that  no  merger  occurs  ;  if  by 
the  act  of  the  party,  the  two  estates  are  said  by  him  to  merge. 
There  are  some  cases  referred  to  which  justify  this  distinction. 

It  results  from  what  has  been  said  that  an  estate  may  merge  for 
a  part  of  the  land  ;  and  continue  in  the  remaining  part  of  the  land. 
The  merger  will  not  be  more  extensive  than  the  particular  part  of 
the  land  in  which  there  are  several  successive  estates  in  the  same 
person,  without  any  difference  whether  the  more  immediate  or  the 
more  remote  estate  comprises  a  larger  portion  of  the  lands.  This 
doctrine  of  a  merger  pro  tanto  is  expressly  recognized  by  the  court 
of  errors,  in  James  v.  Mowry,  {supra,)  and  by  the  chancellor  in 
Lansing  v.  Paine,  (supra.) 

The  law  of  merger  may  operate  between  three  or  more  estates,  as 
well  as  between  two  estates.  If  A.  be  tenant  for  life,  with  remain- 
der to  B.  for  life  with  remainder  to  A.  in  fee  ;  here  the  intermediate 
estate  of  B.  prevents  the  union  of  the  several  estates  in  A.  This  im- 
pediment being  removed  by  B.'s  conveying  his  life  estate  to  A.,  the 
whole  becomes  one  interest.  A.  is  no  longer  a  tenant  for  life,  or  a 
tenant  ^wr  auter  vie,  but  a  tenant  in  fee. 

The  next  circumstance  we  shall  notice  is  that  the  several  estates 
must  be  immediately  expectant  on  each  other.  The  more  remote 
must  be  without  any  intervening  vested  estate,  and  also  without  any 
intervening  contingent  remainder  created  in  the  same  instant  of 
time,  and  by  the  same  means  as  gave  origin  to  the  other  estates. 
{Preston  on  llerger,  107.)  It  is  absolutely  necessary  that  the  latter 
estate  should  be  connected  with  the  former  estate,  and  be  immedi- 
ately expectant  thereon,  so  as  to  come  into  its  place,  on  the  determ- 
ination of  that  estate. 

One  case  to  illustrate  this  is,  if  a  man  lease  to  one  for  ten  years, 
and  afterwards  lease  the  same  land  for  twenty  years,  and  the  first 
lessee  purchases  the  reversion  in  fee,  yet  the  first  lease  is  not  extinct, 
because  the  second  lease,  which  is  for  twenty  years,  is  mesne  between 


310  GRADATION  OF  ESTATES. 

the  first  lease  and  the  fee  simple,  which  is  an  impediment  to  extin- 
guishment. 

If  one  of  the  mesne  estates,  where  there  are  several,  be  greater  in 
its  quantity  and  extent  than  the  estate  by  which  it  is  followed,  the 
oJDeration  of  the  doctrine  must  experience  an  interruption  at  this 
point.     The  doctrine  must  be  stationary  till  the  impediment  shall 
be  removed,  either  by  the  actual  determination  of  this  mesne  estate, 
or  by  some  change  in  the  tenancy  of  the  parties,  which  will  afford 
room  for  the  application  of  the  leasing.     This  case  is  put  by  way  of 
illustration.    A.  is  tenant  for  21years,  remainder  to  B.  for  life,  remain- 
der to  A.  for  life,  remainder  to  A.  for  1000  years,  remainder  to  D.  in 
fee,  and  B.  conveys  his  estate  to  A.     As  soon  as  this  conveyance  is 
made,  first  the  estate  from  the  life  of  B.,  and  secondly,  the  estate  for 
twenty-one  years,  will  merge  in  the  life  estate  of  A.     This  is  the  ne 
plus  ultra  to  which  the  doctrine  can  be  carried  under  these  circum- 
stances of  the  tenancy.     The  next  estate  of  A.  is  for  years,  and  his 
estate  for  life  is  larger  than,  and  prior  to  that  estate,  and  for  that 
reason  cannot  merge  in  the  same ;  but  suppose  D.  who  is  seised  of 
the  fee,  to  convey  that  estate  to  A.  or  to  limit  the  same  to  him  in 
tail,  or  to  die  leaving  A.  his  heir ;  in  either  of  these  cases,  the  acces- 
sion of  the  fee  will  operate  to  the  merger  and  annihilation  of  the 
estate  for  one  thousand  years.     By  these  means  the  estate  of  A.  for 
his  life,  and  his  estate  in  fee,  will  become  immediate  to  each  other ; 
and  as  the  estate  for  life,  or  for  years,  is  less  than  the  estate  in  fee, 
the  estate  for  life  will  merge  in  that  estate.     {Preston  on  Merg.  142.) 
Another  circumstance  to  be  observed  is,  that  the  more  remote  es- 
tate must  be  as  large  as,  or  larger  than  the  more  immediate  estate. 
Thus,  where  a  man  leases  for  a  term  of  years,  and  afterwards  takes 
an  interest  for  term  of  life,  to  take  effect  immediately ;  there  the 
lease  for  years  is  extinct.     But  where  one  leases  to  J.  N.  for  term 
of  life  and  twenty  years  over,  then  he  shall  have  both  estates,-     The 
reason  is  that  the  more  remote  estate  is  less  than  the  estate  for  life. 
{Preston  on  llerger,  166.) 

Under  this  head  it  will  not  be  inappropriate  to  notice  the  grada- 
tion of  estates.  This  has  reference  to  their  quantity  as  well  as  qual- 
ity. With  respect  to  quantity,  the  highest  estate  with  ns  is  a  fee 
simple.  This  comprehends  all  other  interests.  The  next  in  order 
are  determinable  fees,  qualified  fees,  and  conditional  fees.  There  is 
no  principle  by  which  a  superiority  can  be  given  to  one  of  these  last 
over  the  others,  except  where  one  of  them  is  derived  out  of  the  other ; 


GRADATION  OF  ESTATES.  311 

and  thus  the  derivative  interest  must,  of  necessity,  be  the  inferior 
estate. 

Next  folio vi^  estates  for  life ;  in  which  are  included  1st.  Estates 
for  the  life  of  the  party ;  2d,  for  several  lives  ;  3d,  for  the  life  of 
another  jDcrson ;  and  4th,  for  the  joint  lives  of  several  persons.  Next 
come  estates  for  years  which  are  all  of  the  same  nature  ;  though 
they  may  be  different  in  their  extent.  Then  other  chattel  interests ; 
and  lastly  estates  at  will. 

Any  estate  of  an  inferior  degree  may,  if  the  requisite  circumstan- 
ces concur,  merge  in  one  of  a  higher  nature.  A  term  of  years  de- 
rived by  way  of  under  lease,  out  of  a  term  of  years,  may  merge 
therein.  And  an  estate  for  years  may  merge  in  a  more  remote  term 
in  remainder.     {Preston  on  Merger,  169,  182,  201.) 


PART  III. 

OF  THE  MODE  OF  ALIENATION  OF  REAL  PROPERTY. 


IN  this  brancli  of  our  treatise  it  becomes  necessary  to  examine  the  va- 
rious modes  by  which  title  to  real  estate  is  lost  or  acquired  ;  and 
of  the  various  circumstances  which  occur  in  transmitting  it  from  one 
person  to  another.  It  involves  the  consideration  of  the  theory  as 
well  as  the  practice  of  conveyancing.  This  leads  to  the  inquiry 
whether  the  property  has  been  acquired  by  descent  or  purchase.  It 
shows  the  necessity  and  points  out  the  mode  of  preparing  abstracts 
of  title,  and  searching  for  incumbrances.  And  it  gives  the  form  in 
which  these  instruments  of  alienation  are  made.  We  shall  treat  of 
these  subjects  under  the  following  heads,  and  reserve  for  the  appen- 
dix the  collection  of  various  forms  which  are  used  in  the  conveyance 
of  real  property. 


CHAPTER  L 

OF  TITLE  TO  THINGS  REAL, 

Most  writers  on  the  subject  have  adopted  the  definition  of  Coke  ; 
{Co.  Litt.  345  h.)  Titulus  estjusta  causa  prossidendi  quod  nostrum 
est;  signifying  the  means  whereby  a  man  has  the  ownership  and  pos- 
session of  his  property.  This  definition  has  reference  not  only  to 
the  instruments  which  convey,  and  afford  the  evidence  of  title,  but 
those  acts  of  possession  and  occupation  which  usually  attend  it.  In 
this  sense  it  embraces  not  only  deeds,  wills  and  other  muniments  of 

[312] 


TITLE  TO  THINGS  REAL.  313 

ownership,  but  the  actual  and  rightful  enjoyment  of  property, 
whether  gained  by  a  written  transfer  from  the  rightful  owner,  by  de- 
scent, or  by  long  and  uninterrupted  possession. 

The  evidence  by  which  the  title  of  the  claimant  is  established  ad- 
mits of  various  degrees,  from  the  slightest  presumption  to  the  high- 
est probability.  The  various  stages  in  this  evidence  may  be  properly 
marked  by  considering  first,  simple  possession  ;  second,  right  of  pos- 
session ;  and  third,  the  right  of  property. 

1.  The  lowest  order  of  evidence,  in  this  respect,  is  that  which  re- 
sults from  the  actual  possession.  This  may  happen  when  one  man 
unjustly  expels  another,  or,  in  the  language  of  the  old  cases,  disseises 
him.  It  may  occur  when,  on  the  death  of  the  rightful  owner,  and 
before  the  entry  of  the  heirs,  a  stranger  abates,  as  it  is  termed,  and 
holds  out  the  heir.  The  evidence  of  title  derived  from  bare  naked 
possession  is  all  the  time  increasing  by  the  acquiescence  or  negli- 
gence of  the  rightful  owner,  until  at  length,  it  maj''  ripen  into  an 
indefeasible  right. 

Until  the  true  owner  has  asserted  his  right  to  devest  this  posses- 
sion, such  possession,  as  against  all  the  rest  of  the  world,  affords 
prima  facie  evidence  of  a  legal  title  to  the  possessor.  It  is  sufficient 
to  enable  him  to  maintain  an  action  against  a  trespasser  who  has 
no  actual  title  to  the  land,  or  right  of  possession.  {Hyatt  v.  Wood, 
4  John.  157.)  And  trespass  cannot  be  maintained  against  a  stran- 
ger, except  by  the  person  who  has  the  possession  in  fact  of  the  land, 
{Campbell  v.  Arnold,  1  id.  511.) 

This  presumption  in  favor  of  the  actual  occupant  rests  on  the 
well  known  feudal  maxim,  that  seisin  must  be  the  basis  of  every 
title,  except  in  the  case  of  descent. 

2.  The  next  stage  of  a  perfect  title  is  a  right  to  the  possession. 
This  right  may  be  in  one  person,  while  the  actual  possession  is  in 
another.  A  tenant  for  a  terra  of  years  may  be  turned  out  of  pos- 
session by  a  naked  trespasser.  In  this  case,  he  who  was  expelled  has 
the  right  of  possession,  which  the  law  will  protect,  while  a  wrong- 
doer has  the  actual  possession.  This  right  of  possession  is  either 
apparent,  which  may  be  rebutted  by  a  better  right ;  or  actual,  which 
will  be  paramount  to  all  other  claims.  There  is  much  nice  reason- 
ing on  this  subject  in  the  old  English  books,  which  has  little  or  no 
application  to  our  jurisprudence,  at  the  present  day. 


314  TITLE  TO  THINGS  REAL. 

3.  The  last  ingredient  of  a  perfect  title  is  the  right  of  i^voperty ; 
the  jus  xiroprietatis  of  feudalism.  This  may  exist  in  the  original 
and  rightful  owner,  after  the  right  of  possession  has  been  gained  by- 
one  party,  and  the  actual  possession  by  another.  The  distinction 
between  the  right  of  possession  and  the  right  of  property,  at  the 
present  day  in  this  state,  is  followed  by  no  practical  consequence 
since  1830,  when,  by  the  revised  statutes,  the  statute  of  limitations 
was  fixed  at  twenty  years,  whether  the  remedy  was  brought  to 
assert  a  mere  right  to  the  land,  or  a  right  to  the  possession  of  it. 
(2  R.  S.  292,  repealed  by  the  Code,  and  the  substance  re-enacted, 
Cfode,  §§  75,  78,  et  seq.) 

The  union  of  the  three  preceding  requisites  are  essential  to  a  per- 
fect title  to  lands,  tenements  and  hereditaments,  viz.  the  actual  pos- 
session, the  right  to  possession  and  the  right  of  property.  Lord 
Coke  thus  states  the  whole  doctrine :  "  It  is  to  be  known  that  there 
is  Jus  proprietatis,  a  right  of  ownership ;  jus  possessionis,  a  right  of 
seisin  or  posssession ;  and  jus  proprietatis  et  possessionis,  a  right 
both  of  property  and  possession.  For  example,  a  man  may  be  dis- 
seised of  an  acre  of  land,  the  disseisee  hsith  jus  proprietatis,  the  dis- 
seisor hsith  jus  jjossessio^iis;  and  if  the  disseisee  release  to  the  dis- 
seisor, he  hath  Jus  proprietatis  et  possessionis."     {Co.  Litt.  266  a.) 

The  owner  of  real  property  who  proposes  to  sell  or  mortgage, 
must,  according  to  the  English  writers,  be  prepared  to  deduce  his 
title  to  the  possession  of  it  during  a  period  of  sixty  years  at  least,  pre- 
vious to  such  sale  or  mortgage.  {Whart.  Conv.  497.)  This  period 
was  fixed  with  reference  to  the  statute  of  limitations  in  England, 
which  formerly  required  a  period  of  sixty  years  to  bar  a  writ  of  right. 
The  act  of  3  and  4  Will.  4,  ch.  27,  among  other  changes,  reduced 
the  period  of  limitations  to  twenty  years,  and  abolished  all  the  old 
real  and  mixed  actions,  except  dower  quare  impedit  and  ejectment, 
and  provided  that  where  the  remedy  is  barred  by  time,  the  right  and 
title  of  the  person  in  any  land,  rent,  &c.  whose  remedy  is  thus  taken 
away,  is  extinguished.  This  is  said  to  be  a  great  improvement,  and 
very  much  assists  titles  depending  upon  non-claim.  {Sugden's 
Vend.  613,  614.) 

Opinions  differed  as  to  the  reason  of  the  rule  fixing  sixty  years  as 
the  minimum  extent  to  which  abstracts  of  title  should  reach.  If  it 
depended  solely  on  the  analogy  drawn  from  the  statute  of  limitations 
it  was  supposed  that  a  shorter  period  might  be  adopted.  But  the 
q[uestion  has  been  conclusively  settled  in  England  by  Lord  Gotten- 


MODE  OF  ACQUIRING-  TITLE.  3I5 

ham,  in  the  case  of  Oooj^cr  v,  Emery,  (1  Phil.  388,)  that  the  period 
for  which  a  good  title  is  required  to  be  shown  is  still  sixty  years,  not- 
withstanding the  statute  of  3  and  4  Will.  4.     In  delivering  his 
judgment  the  chancellor  says :    "  It  was  supposed  that  by  the  oper- 
ation of  that  act,  it  was  not  necessary  that  the  title  should  be  carried 
back,  as  formerly,  to  a  period  of  sixty  years,  but  that  some  shorter 
period  would  be  proper.     It  appears  that  conveyancers  have  enter- 
tained different  opinions  on  that  subject ;  but  after  considering  it 
I  am  of  opinion  that  the  statute  does  not  introduce  any  new  rule  in 
this  respect;  and  that  to  introduce  any  new  rules,  shortening  the 
period,  would  affect  the  security  of  titles.     One  ground  of  the  rule 
was  the  duration  of  human  life ;  and  that  is  not  affected  by  the 
statute.     It  is  true  that  in  other  respects  the  Security  of  a  sixty 
years'  title  is  better  now  than  it  was  before.     But  I  think  that  is 
not  a  sufficient  reason  for  shortening  the  period ;  for  adopting  forty 
years,  or  as  it  has  been  suggested  by  a  high  authority,  fifty  years 
instead  of  sixty.     I  think  the  rule  ought  to  remain  as  it  is,  and  that 
it  would  be  dangerous  to  make  any  alteration."     {See  Whart.  Conv. 
498  and  notes.) 

In  this  country  a  less  period  than  in  England,  of  uninterrupted 
possession  and  enjoyment  of  land,  will  afford  the  requisite  evidence 
of  ownership.  In  most,  if  not  all  the  states,  grants  have  been  very 
freely  presumed  upon  proof  of  an  adverse,  exclusive  and  uninter- 
rupted enjoyment  of  twenty  years ;  it  being  the  policy  of  courts  of 
law  to  limit  the  presumption  to  periods  analogous  to  those  of  the 
statute  of  limitations,  in  all  cases  where  the  statutes  do  not  apply. 
(2  Gh^eenl  Ev.  §  539.) 

But  this  branch  of  the  subject  will  be  resumed  under  a  subsequent 
head,  and  need  not  be  further  noticed  in  this  place. 

It  remains  to  consider  the  modes  of  acquiring  a  title  to  real  prop- 
erty. These  are  two :  by  descent  and  purchase.  In  the  former  the 
title  is  vested  in  a  person  by  the  operation  of  law,  and  the  latter  by 
the  act  and  agreement  of  the  party.  (Co.  Litt.  18  h.)  This  distri- 
bution is  sufficient  for  all  practical  purposes,  though  as  a  definition, 
it  is  open  to  criticism.    {Hargrave's  note  106  to  Co.  Litt.  18  h.) 


316  TITLE  BY  DESCENT. 


CHAPTER  11. 

OF    TITLE    BY    DESCENT. 

Having  shown  in  the  preceding  chapter,  the  nature  of  title  to 
things  real,  and  that  the  modes  of  acquiring  it  might  be  substan- 
tially reduced  to  two,  we  propose  now  to  consider  that  species 
of  title  which  is  derived  by  descent. 

Descent  is  the  title  whereby  a  person,  on  the  death  of  his  ancestor, 
acquires  his  estate  as  his  heir  at  law.  The  heir  therefore  is  the 
person  upon  whom  the  law  casts  the  estate  immediately  on  the  death 
of  the  ancestor. 

The  English  law  of  descents  is  derived,  it  is  said,  from  feudal 
principles,  and  differs  essentially  from  the  Roman  law  of  succession. 
It  contains  a  number  of  rules,  or  canons,  which  if  they  were  ever  in 
force  in  this  state,  have  been  greatly  modified,  and  in  some  instances 
repealed.  The  rules  of  deseent  in  this  state  depend  mainly  on  our 
statute,  which  adopts  only  such  parts  of  the  common  law  as  it  does 
not  repeal.     (1  R.  S.  750.) 

The  law  of  descent  has  reference  only  to  real  estate,  and  not  to 
personal.  The  former,  if  not  disposed  of  by  devise,  descends  to  the 
heirs ;  the  latter  vests  at  the  death  of  the  owner,  in  his  personal 
representatives.  If  not  bequeathed  by  will,  it  is  to  be  distributed 
among  the  next  of  kin  of  the  last  possessor,  according  to  the  statute 
of  distributions.  The  next  of  kin  may  be  the  same  persons  as  the 
heirs  at  law,  and  may  embrace  some  persons  who  would  not  take  by 
descent. 

Not  only  every  thing  which  falls  under  the  denomination  of  real 
estate  descends  to  the  heirs,  but  also  heir  looms,  and  all  such  other 
chattels  as  are  annexed  to  or  connected  with  the  freehold  ;  as  wain- 
scots, benches,  doors,  windows,  charters,  deeds  and  other  evidences 
of  the  title,  together  with  the  chests  and  boxes  in  which  they  are 
contained.  Enough  has  been  said  on  this  subject  in  a  former  chapter. 
{See  ante,  Part  1,  cli.  2.) 

Trees,  whether  timber  trees  or  not,  if  standing  on  the  land  at  the 
death  of  the  ancestor,  together  with  the  grass  annually  growing,  though 
ripe  for  cutting,  descend  with  the  land  to  the  heirs.  But  such  vegeta- 
bles and  growing  crops  as  are  produced  annually  by  labor  and  cultiva- 
tion, such  as  potatoes,  corn  and  the  like,  go  to  the  personal  representa- 


PERSONS  CAPABLE  OF  INHERITING.  317 

tives.  The  inquiry,  as  to  what  descends  to  the  heir,  and  what  passes 
to  the  executors  or  administrators,  has  often  led  to  much  contro- 
versy. As  between  the  heirs  and  the  executors  or  administrator, 
the  rule  in  favor  of  the  inheritance  obtains  with  the  utmost  rigor ; 
and  things  annexed  to  the  freehold  will  descend  to  the  heir,  which 
as  between  landlord  and  tenant,  if  annexed  by  the  latter  for  purposes 
of  trade,  would  be  treated  as  personal  property.  {Elioes  v.  Blaiv, 
3  East,  38.  Amos  &  Ferard  on  Fixtures,  ch.  2,  §§  3,  4.  Cresson 
V.  Stout,  17  John.  116.  Holmes  v.  Tremper,  20  id.  29.  Beynolds 
V.  Shuler,  5  Coiven,  323.) 

The  doctrine  of  descents  also  often  gives  rise  to  the  inquiry  who 
were  the  heirs  on  whom  the  law  devolves  the  estate.  These  may  be, 
under  the  laws  of  this  state,  the  lineal  descendants,  or  the  ancestor 
of  the  person  last  seised,  or  the  collateral  kindred  of  the  latter,  if 
there  be  none  in  the  other  class  entitled  to  inherit.  The  lineal  re- 
lationship has  reference  to  persons  of  whom  one  is  descended  from 
the  other,  as  ftxther  or  mother,  grand  parents,  &g.  in  the  ascending 
line  ;  or  children,  grandchildren,  great-grandchildren,  in  the  descend- 
ing line.  Collateral  consanguinity  is  that  which  subsists  between 
persons  descended  from  a  common  ancestor.  Thus  brothers  are  col- 
laterally related  to  each  other.  The  like  is  true  of  their  respective 
offspring.  Also  uncles  and  aunts  and  their  descendants  are  collat- 
erally related. 

In  this  state,  the  method  of  computation  is  according  to  the  rule 
of  the  civil  law,  by  which  in  the  ascending  and  descending  line  each 
generation  constitutes  a  degree.  Thus  from  the  father  to  the  son  is 
one  degree,  to  the  grandson  two  degrees,  and  so  on  ad  infinitu7n, 
whether  ascending  or  descending.  The  rule  is  the  same  in  this  re- 
spect as  in  the  canon  law.  But  in  computing  the  relationship  of 
collateral  kindred,  the  civil  law  and  canon  law  differ.  By  the  canon 
law  the  computation  is  made  by  counting  only  from  the  common 
ancestor  to  the  party  most  remote  from  him,  if  the  line  is  unequal, 
or  to  either  party  if  they  are  in  equal  degree.  The  civil  law,  which 
we  follow  in  this  respect  'unless  when  altered  by  statute,  counts 
from  the  propositus  nip  to  the  common  ancestor,  and  then  down- 
wards to  the  other  party  in  question,  reckoning  a  degree  for  each 
generation.     This  subject  will  be  again  resumed. 

The  law  of  descents  involves  also  an  inquiry,  as  to  the  persons 
capable  of  inheriting.     At  common  law  the  persons  claimmg  by  de- 


318  ILLEGITIMATES— ALIENS. 

scent  must  be,  1st,  legitimate;  2d,  natural  born  or  naturalized,  or 
made  denizens;  and  3d,  not  attainted  of  felony. 

No  person  could  claim  as  heir  by  descent  who  was  not  born  in 
lawful  matrimony.  A  bastard  being //ms  nullius,  could  neither  in- 
herit from  father  or  mother.  {Cruise's  Dig.  title  29,  ch.  2.)  It  wall 
be  seen,  when  we  come  to  examine  the  rules  of  descent,  that  the 
term  heir  includes  other  persons  besides  descendants.  At  present 
we  are  only  speaking  of  the  descendants  of  the  intestate,  and  not  of 
the  other  person  on  whom  the  law  casts  the  estate  on  failure  of 
lineal  descendants.  This  rule  of  the  common  law  of  excluding  chil- 
dren and  relatives  who  are  illegitimate  from  inheriting,  is  broken  in 
upon  in  this  state  by  the  act  of  1855,  chapter  574.  By  that  act  il- 
legitimate children,  in  default  of  lawful  issue,  may  inherit  real  and 
personal  property  from  their  mother  as  if  legitimate.  The  law  was 
prospective  in  its  operation  and  was  not  to  affect  any  right  or  title 
in  or  to  any  real  or  personal  property  already  vested  in  the  lawful 
heirs  of  any  person  theretofore  deceased.  (3  R.  S.  43,  5th  ed.)  This 
statute  does  not  prevent  illegitimacy  from  being  an  interruption  to  the 
rule  of  descent,  except  in  the  single  case  for  which  it  provides  ;  that 
of  a  bastard  from  its  mother  in  case  she  has  no  legitimate  issue. 
The  illegitimate  offspring,  if  there  be  more  than  one,  cannot  inherit 
from  each  other,  nor  from  their  putative  father,  or  his  relatives,  or 
the  relatives  of  their  mother.  In  all  respects,  save  the  case  specifi- 
cally provided  for,  the  rule  is  that  illegitimates  are  not  entitled  to 
inherit,  under  any  of  the  provisions  of  the  act.     (1  R.  S.  754,  §  19.) 

It  is  not  essential  that  the  heir  should  be  born  during  the  lifetime 
of  the  parents.  Our  statute  expressly  provides  that  descendants  and 
relatives  of  the  intestate,  begotten  before  his  death,  but  born  there- 
after, shall,  in  all  cases,  inherit  in  the  same  manner  as  if  they  had 
been   born   in    the   lifetime   of  the   intestate   and    survived    him. 

{Id.  §  18.) 

We  have  already  alluded  to  the  disability  of  aliens  with  respect 
to  their  obtaining  a  title  by  purchase,  and  have  shown  what  pro- 
vision is  made  in  their  favor  in  this  res])ect,  when  they  have  made 
a  deposition  or  affirmation,  in  writing,  of  their  residence  and  inten- 
tion always  to  reside  in  the  United  States,  and  to  become  citizens 
thereof  as  soon  as  they  can  be  naturalized,  and  that  they  have  taken 
the  incipient  measures  required  by  law  to  enable  them  to  obtain 
naturalization.  {Ante,  Part  1,  ch.  1,  §  2.)  It  remains  to  inquire 
into  their  right  to  take  by  descent. 


ALIENS.  319 

At  common  law  an  alien  cannot  take  by  descent.  Nor  could  a 
natural  born  or  naturalized  citizen  take  by  descent  if  he  had  to 
trace  his  descent  through  an  alien  ancestor.  In  England  the  stat- 
ute of  11  and  12  Will.  3d,  ch.  6,  removed  the  common  law  disa- 
bility of  claiming  title  through  an  alien  ancestor,  but  did  not  apply 
to  a  living  alien  ancestor  so  as  to  create  a  title  by  heirship,  where 
none  would  exist  by  the  common  law,  if  the  ancestor  was  a  natural 
born  sul)ject  or  citizen.  (3I'Cree's  Lessee  v.  Somerville,  9  Wheat 
354.  The  People  v.  Irvin,  21  Wend.  128.)  Hence  the  nephew 
could  not  inherit  from  the  uncle,  if  he  had  to  derive  his  title  through 
a  living  alien  ancestor ;  as  the  nephew  does  not  inherit  directly  from 
the  uncle,  but  must  derive  title  from  the  common  stock.  {Id.)  The 
act  of  11  and  12  Will.  3d,  was  not  re-enacted  in  this  state  until  the 
revision  in  1830.  (1  R.  S.  754,  §  22.  Jackson  v.  Green,  7  Wend. 
333,  339.  Jackson  v.  Fitzsimons,  10  id.  9.  Banlcs  v.  Walker, 
3  Bcirh.  Ch.  438.  McCarthy  v.  Marsh,  1  Seld.  262.  McLean  v. 
Swanton,  3  Kern.  535.) 

The  laws  of  this  state  have  lessened  the  disability  of  alienage  in 
favor  of  actual  residents  who  have  taken  the  incipient  steps  to  be 
naturalized.  Thus,  by  the  revised  statutes,  (1  R.  S.  720,  §  15,  as 
amended  in  1834,  ch.  272 ;  3  R.  S.  5,)  it  is  enacted  that  any  alien 
who  has  come  or  may  hereafter  come  into  the  United  States,  may 
make  a  deposition  or  affirmation  in  writing  that  he  is  a  resident  of, 
and  intends  always  to  reside  in  the  United  States,  and  to  become  a 
citizen  thereof  as  soon  as  he  can  be  naturalized,  and  that  he  has 
taken  such  incipient  measures  as  the  laws  of  the  United  States  re- 
quire, to  enable  him  to  obtain  naturalization,  which  is  required  to 
be  filed  and  recorded  by  the  secretary  of  state  in  a  book  to  be  kept 
by  him  for  that  purpose.  And  the  next  section  provides  that,  the 
alien  having  complied  with  the  foregoing,  he  shall  thereupon  be 
authorized  and  enabled  to  take  and  hold  lands  and  real  estate  of  any 
kind  whatever,  to  him,  his  heirs  and  assigns  forever ;  and  may,  dur- 
ing six  years  thereafter,  sell,  assign,  mortgage,  devise,  and  dispose 
of  the  same  in  any  manner  as  he  might  or  could  do  if  he  were  a  na- 
tive citizen  of  this  state,  or  of  the  United  States,  except  that  no 
such  alien  shall  have  power  to  lease  or  demise  any  real  estate  which 
he  may  take  or  hold  by  virtue  of  this  provision,  until  he  becomes 
naturalized.     (Kennedy  v.  Wood,  20  Wend.  233.) 

Various  statutes  have  been  passed  at  different  times,  some  in  re- 
lation to  individuals,  and  others  of  a  limited  character,  with  respect 


320  ALIENS. 

to  the  disability  of  alienage ;  and  all  tending  to  mitigate  the  rigor 
of  the  common  law.  It  cannot  be  expected  that  these  various 
enactments  should  be  inserted  in  this  treatise.  Parties  deriving  title 
under  them  will  be  able  to  refer  to  them,  and  others  have  little  or 
no  interest  in  them. 

The  act  of  1845  went  forther  towards  removing  the  disability  in 
question  than  any  previous  general  law,  and  was  for  the  benefit  of 
resident  aliens  indiscriminately.  The  first  section  provides  that  any 
alien  resident  of  this  state,  who  has  heretofore  purchased  and  taken 
a  conveyance  of  any  lands  or  real  estate  within  this  state,  or  to  whom 
any  lands  or  real  estate  have  been  or  may  hereafter  be  devised,  before 
making  and  filing  in  the  ofiice  of  secretary  of  state  the  deposition  or 
affirmation  in  writing,  specified  above,  may,  on  making  and  filing 
such  deposition  or  affirmation,  hold  the  real  estate  granted,  convey- 
ed or  devised  to  such  alien,  in  the  same  manner  and  with  the  like 
effect  as  if  such  alien,  at  the  time  of  such  grant,  conveyance  or  de- 
vise, were  a  citizen  of  the  United  States.  (Laws  of  1845,  cJi.  115. 
1  B.  S.  6,  5fh  ed.)  Though  this  section  does  not  authorize  the  alien 
to  take  by  descent,  it  enables  him  to  acquire  real  estate  by  purchase, 
and  imparts  to  him  a  capacity  to  transmit  it  to  his  heirs  by  descent 
or  otherwise.  This  is  obviously  included  in  the  authority  to  hold  it 
m  the  same  mo.nner  as  if  lie  luere  a  citizen  of  the  United  States. 

The  fourth  section  goes  a  little  further,  and  enables  those  who  on 
his  death  would,  according  to  the  statutes  of  this  state,  answer  the 
description  of  heirs  of  such  deceased  alien,  whether  they  are  citizens 
or  aliens,  to  take  and  hold  as  heirs  of  such  deceased  alien,  as  if  they 
were  citizens  of  the  United  States,  the  lands  and  real  estate  of  such 
alien  at  his  death,  in  the  like  manner  as  if  such  alien,  at  his  death, 
were  a  citizen  of  the  United  States.  But  if  any  persons  answering 
the  description  of  heirs  to  such  alien,  are  males  of  full  age,  they  shall 
not  hold  the  real  estate  hereby  made  descendible  to  them  as  against 
the  state,  unless  they  are  citizens  of  the  United  States,  or,  in  case 
they  are  aliens,  unless  they  make  and  file  in  the  office  of  the  secre- 
tary of  state  the  deposition  or  affirmation  before  mentioned.  (3  B.  S. 
7,  5th  ed.) 

This  statute  removes,  to  a  great  extent,  the  disability  of  alienage, 
and  enables  the  persons  who  comply  with  its  terms  and  fall  within 
its  provisions  to  take  by  descent  from  an  alien  as  if  they  were  citizens 
of  the  United  States.  (Broivn  v.  Sprague,  5  Benio,  550,  551,  per 
Beardsley,  J.) 


CHILDREN  OF  ALIENS— DENIZENS.  321 

A  person  duly  naturalized  according  to  the  provisions  of  the  act 
of  congress  to  establish  a  uniform  rule  of  naturalization  and  the  acts 
amending  the  same,  has  the  like  capacity  to  take  and  transmit  real 
estate,  as  a  native  born  citizen.  (3  Laws  of  U.  S.  April  14,  1802, 
ch.  28,  p.  475.  Jackson  v.  Green,  7  Wend.  333.)  If  the  alien  has 
previously  obtained  real  estate  by  purchase,  by  becoming  a  citizen  at 
any  time  before  office  found,  his  title,  even  as  against  the  state,  is 
confirmed.     (The  Peojyle  v.  ConJdin,  2  Hill.,  67.) 

It  need  not  appear  by  the  record,  that  all  the  preliminary  requi- 
sites to  a  naturalization  were  complied  with.  The  judgment  of  the 
court  admitting  the  alien  to  become  a  citizen,  is  conclusive  evidence 
upon  that  point.  {Ritchie  v.  Putnam,  13  Wend.  524.)  If  a  record 
of  naturalization  is  valid  on  its  face,  it  is  conclusive.  (Banks  v. 
Walker,  3  Barh.  Ch.  438.) 

With  respect  to  the  children  of  such  persons  as  are  naturalized 
under  the  act  of  1802,  it  is  provided  that  if  they  are  dwelling  within 
the  United  States,  and  within  the  age  of  twenty-one  years,  at  the 
time  of  such  naturalization,  they  are  considered  as  citizens  of  the 
United  States.  The  act  of  congress  is  held  to  be  prospective. 
{West  v.  West,  8  Paige,  435.     Peck  v.  Young,  26  Wend.  613.) 

In  England,  it  is  said  that  if  an  alien  be  made  a  denizen  by  the 
king's  letters  patent,  and  afterwards  purchase  lands,  his  son,  born 
before  his  denization,  cannot  inherit  those  lands,  but  a  son  born  after 
the  denization,  may  inherit  them,  even  though  his  elder  brother  be 
living.  (1  Bl.  Com.  374.)  But  there  is  no  such  class  of  persons  in 
this  state  as  denizens.^' 

The  act  of  1845,  before  cited,  in  the  8th  section,  provides  that  all 
aliens  who  shall  hold  any  real  estate  by  virtue  of  any  of  its  provis- 
ions, shall  be  subject  to  duties,  assessments,  taxes  and  burdens,  as  if 

*  A  denizen  is  an  alien  born,  who  has  obtained,  from  the  king,  letters  patent  to 
make  him  either  permanently  or  for  a  time,  an  English  subject.  He  occupies  a  mid- 
dle state  between  an  alien  and  a  natural  born  subject,  and  partakes  of  both  of  them. 
He  may  take  lands  by  purchase  or  devise,  but  cannot  take  by  inheritance.  (1  Black. 
Com.  374  and  note.  Burrill's  Laiv  Did.  word  Denizen.)  According  to  Lord  Coke,  a 
person  born  within  the  king's  liegance  is  called  sometimes  a  denizen:  In  acts  of 
parliament,  denizen  is  taken  for  alien  born,  who  is  denizated  by  letters  patent, 
granted  by  the  king.  {Co.  Lilt.  129  a.)  This  last  is  the  usual  meaning  of  the  term, 
and  it  is  never  used  as  synonymous  with  citizen  or  subject.  {Lessee  of»Levy  v.  Mc- 
Carty,  6  Peters,  117,  note.  8  T.  R.  31.  1  i?.  ^  P.  430.)  A  denizea  can  hold  no  office 
civil  or  military.  (1  Bl.  Com.  374  )  His  legal  status  is  more  liko  that  of  the  emanci- 
pated slaves,  in  those  states  where  they  are  not  treated  as  citizens,  than  that  of  natu- 
ral born  or  naturalized  citizens. 

Will.— 21 


322  CONVICTS.    RULES  OP  DESCENT. 

he  were  a  citizen  of  the  United  States ;  but  shall  be  incapable  of 
voting  at  any  election,  or  of  being  elected  or  appointed  to  any  office, 
or  of  serving  on  any  jury. 

A  person  attainted  of  treason  or  felony  was  at  common  law  inca- 
pable of  taking  by  descent,  or  of  transmitting  his  estate  to  his  heirs. 
Such  attainder  operated  as  an  extinction  of  his  civil  rights  and  capa- 
cities, which  took  place  on  pronouncing  sentence  of  death.  (4  Bl. 
Com.  380.)  He  is  from  that  moment  treated  as  dead  in  law.  [Id. 
and  2  id.  251.)  The  constitution  of  the  United  States  forbids  the 
passage  of  any  bill  of  attainder  ;  and  provides  that  no  attainder  of 
trpason  shall  work  corruption  of  blood  or  forfeiture,  except  during 
the  life  of  the  person  attainted.  {Const.  U.  S.  art.  2,  §  9,  and  art. 
3,  §  8.)  This  state,  during  the  revolution,  on  the  22d  October, 
1779,  (1  Greenl.  26,)  attainted  fifty-nine  persons,  who  had  been  prom- 
inent subjects  in  the  colony,  and  many  of  them  high  officers  in  the 
frovernment,  and  confiscated  their  estates  and  vested  the  same  in  the 
people.  The  same  act  banished  the  said  persons  from  the  state, 
and  directed  that  if  any  of  them  should  be  afterwards  found  in  the 
state  they  should  suffer  death,  as  in  cases  of  felony,  without  benefit 
of  clergy. 

The  existing  law  of  this  state  provides  that  whenever  any  person 
shall  be  outlawed  upon  a  conviction  for  treason,  the  judgment  there- 
upon shall  produce  a  forfeiture  to  the  people  of  this  state,  during 
the  lifetime  of  such  person,  and  no  longer,  of  every  freehold  estate 
in  real  property,  of  which  such  person  was  seised  in  his  own  right, 
at  the  time  of  such  treason  committed,  or  at  any  time  thereafter ; 
and  of  all  his  goods  and  chattels.  (2  R.  S.  656,  §  3.)  A  person 
sentenced  to  imprisonment  in  a  state  prison  for  life,  shall  thereafter 
be  deemed  civilly  dead.  {Id.  701,  §  20.)  Of  course  he  cannot  af- 
terwards take  by  descent,  or  be  the  medium  through  which  others 
may  trace  their  title. 


CHAPTER  III. 

OF   THE   KULES   OF   DESCENT. 


The  constitution  of  1777  adopted  such  parts  of  the  common  law 
of  England,  and  of  the  statute  law  of  England  and  Great  Britain, 
and  of  the  acts  of  the  legislature  of  the  colony  of  New- York,  as  to- 


RULES  OF  DESCENT.  323 

gether  formed  the  law  of  the  colony  on  the  19th  April,  1777,  as  the 
law  of  this  state,  subject  to  such  alterations  and  provisions  as  the 
legislature  of  the  state  should,  from  time  to  time,  make  concerning 
the  same.  This  feature  of  the  first  constitution  has  been  preserved 
and  re-adopted  in  each  of  the  subsequent  constitutions  of  the  state, 
and  is  still  a  part  of  the  organic  law.  The  common  law  of  England 
with  regard  to  descents,  with  its  doctrine  of  primogeniture,  prefer- 
ence of  males  over  females,  exclusion  of  the  half  blood,  and  its  vari- 
ous other  provisions,  was  the  law  of  the  colony,  until  altered  by  the 
act  of  the  12th  July,  1782 ;  which  latter  act  was  revised  and  re- 
pealed on  the  23d  February,  1786.  (1  Greenl.  205.)  This  latter 
statute  still  required  the  heir  to  be  the  heir  of  the  lyerson  last  seised^ 
and  the  inheritance  was  then  directed  to  descend  1,  to  his  lawful 
issue,  standing  in  equal  degree,  in  equal  parts  as  tenants  in  common ; 
2,  to  his  lawful  issue,  and  their  descendants,  in  different  degrees, 
according  to  the  right  of  representation  ;  3,  to  the  father  ;  4,  to 
brothers  and  sisters ;  5,  to  the  children  of  brothers  and  sisters.  In 
all  cases  of  descent  beyond  those  five  cases,  the  common  law  con- 
trolled. The  foregoing,  it  will  be  seen,  abrogated  the  law  of  primo- 
geniture, and  the  preference  of  males  to  females,  and  the  exclusion 
of  the  parents  on  failure  of  lineal  descendants,  and  constituted  them, 
in  a  certain  order,  heirs  to  their  own  children. 

The  law  thus  remained  in  this  state  until  the  revision  of  the  stat- 
utes in  1830,  when  important  changes  were  introduced.  All  the  de- 
cisions of  the  courts  of  this  state,  prior  to  1830,  with  respect  to  the 
transmission  of  real  estate  by  descent,  were  made  either  with  refer- 
ence to  the  common  law,  or  that  law  as  modified  by  the  acts  of 
1782  and  1786.  Some  cases,  arising  under  the  former  law,  were  not 
the  subject  of  adjudication  until  after  1830,  and  were  determined 
according  to  the  principles  of  the  statutes  in  force  at  the  time  the 
respective  cases  arose.  So  long  a  period  has  elapsed  since  the  act  of 
1782,  that  no  case  can  be  expected  to  arise  depending  wholly  upon 
common  law  principles.  And  the  period  of  thirty  years  and  upwards, 
which  has  transpired  since  the  revised  statutes  took  effect,  has  made 
it  needless  to  devote  much  time  to  a  consideration  of  the  state  of  the 
law  antecedently  in  force. 

The  act  of  1786  adopted  the  maxim  of  the  common  law,  which 
had  subsisted  for  ages,  that  lands  in  fee  simple  must  descend  to  the 
heir  of  the  pei-son  last  actually  seised  thereof.  Coke,  in  his  com- 
mentary on  the  8th  section  of  Littleton,  p.  15  a,  states  the  law  to 


324  RULES  OF  DESCENT— POSSESSIO  FRATRIS. 

be,  that  if  the  father  make  a  lease  for  years,  and  the  lessee  entereth 
and  dieth,  and  the  eldest  son  dieth  during  the  term,  before  entry 
and  receipt  of  the  rent,  the  youngest  son  of  the  half  blood  shall  not 
inherit,  but  the  sister  ;  because  the  possession  of  the  lessee  for  years 
is  the  possession  of  the  eldest  son,  so  as  he  is  actually  seised  of  the 
fee  simple,  and  consequently  the  sister  of  the  whole  blood  is  to  be 
heir.  But,  he  observes,  in  the  case  aforesaid,  if  the  father  made  a 
lease  for  life,  or  a  gift  in  tail,  and  dieth,  and  the  eldest  son  dieth  in 
the  life  of  a  tenant  for  life,  or  tenant  in  tail,  the  younger  brother  of 
the  half  blood  shall  inherit,  because  the  tenant  for  life  or  the  tenant 
in  tail  is  seised  of  the  freehold,  and  the  eldest  son  had  nothing  but 
a  reversion  expectant  upon  that  freehold  or  estate  tail,  and  there- 
fore the  youngest  son  shall  inherit  the  land,  as  heir  to  his  father 
•who  was  last  seised  of  the  actual  freehold.  (3  Co.  Eep.  42,  Bad- 
cliff's  case.)  This  is  the  language  of  Spencer,  J.  in  Jackson  v.  Hil- 
ton  and  others,  (16  John.  99,)  a  case  which  arose  under  the  com- 
mon law,  before  it  had  been  affected  by  the  act  of  1782  or  1786. 
In  that  case  the  testator,  by  his  will,  dated  1755,  devised  certain 
real  estate  to  his  daughter,  without  making  any  disposition  of  the 
reversion.  The  testator  died,  leaving  B.  his  heir  at  law,  who  died 
before  the  termination  of  the  life  estate.  It  was  held,  that  the  heirs 
of  B.  were  not  entitled  as  such  to  the  land  after  the  death  of  the 
tenant  for  life ;  for  the  reason  that  B.,  the  son,  had  not  such  seisin 
as  to  create  a  new  stock  of  descent ;  and  a  person  claiming  the  land 
by  descent  must  entitle  himself  as  heir  of  the  devisor  who  was  last 
actually  seised  in  fee. 

In  the  case  of  Jackson  v.  EendricJcs,  (3  John.  Cases,  214,)  the 
same  doctrine  was  recognized.  In  that  case  Esther  Hendricks  died 
seised  of  real  estate  in  1775,  leaving  a  husband  and  two  sons  and 
three  daughters ;  the  husband  became  seised  by  the  curtesy  until  his 
decease  in  1793 ;  the  eldest  son  died  in  1784,  intestate,  and  without 
issue ;  the  youngest  son  entered  after  the  death  of  his  father ;  the 
sisters  brought  their  ejectment,  and  the  court  held  that  the  case  was 
governed  by  the  common  law,  and  the  statute  of  descents  did  not 
apply,  {Act  of  1786 ;)  that  the  descent  to  the  eldest  son  was  sus- 
pended by  the  existence  of  the  estate  of  the  tenant  by  the  curtesy, 
and  the  eldest  son  was  not  seised  so  as  to  form  a  new  stock  of  de- 
scent, or  to  constitute  a.  possessio  fratris ;  and  that  the  mother  was 
the  person  last  seised,  from  whom  the  descent  must  be  claimed ;  and 
as  she  died  before  the  statute  of  descents,  {Act  of  1786,)  her  surviv- 


POSSESSIO  FRATRIS.  325 

ing  son  was  adjudged  to  be  entitled  to  the  estate,  to  the  total  exclu- 
Bion  of  his  sisters.  The  same  doctrine  was  held  in  Bates  v.  Shrae- 
der,  (13  John.  260.) 

The  possessio  fi-atris  is  an  expression  found  in  the  old  books,  and 
is  used  to  denote  the  doctrine,  which  prevailed  at  common  law,  of 
the  exclusion  of  the  half  blood  from  the  succession  to  estates.  ^  The 
maxim  was  that  the  brother's  possession  of  an  estate  in  fee  simple, 
makes  the  sister  to  be  heir.  This  is  best  illustrated  by  Blackstone. 
(2  Black.  Com.  227.)  If  a  father  have  two  sons,  A,  and  B.,  by- 
different  wives ;  now  these  two  brethren  are  not  brethren  of  the 
whole  blood,  and  therefore  shall  never  inherit  to  each  other,  but  the 
estate  shall  rather  escheat  to  the  lord.  Nay,  even  if  the  father  dies, 
and  his  lands  descend  to  his  eldest  son  A.,  who  enters  thereon,  and 
dies  seised  without  issue ;  still  B.  shall  not  be  heir  to  this  estate,  be- 
cause he  is  only  of  the  half  blood  to  A.  the  person  last  seised  ;  but 
it  shall  descend  to  a  sister  (if  any)  of  the  whole  blood  A  ;  for  in  such, 
cases  the  maxim  is  that  the  seisin  or  possessio  fratris  facit  sororem 
esse  hoeredem.  Yet,  had  A.  died  without  entry,  then  B.  might  have 
inherited ;  not  as  heir  to  A.,  his  half  brother,  but  as  heir  to  the 
common  father,  who  was  the  person  last  actually  seised.  This  was 
the  common  law.  It  is,  however,  not  now  law  in  England,  it  hav- 
ing been  recently  abolished  by  3  and  4  Will.  4th,  and  it  is  not  law 
in  this  state,  as  we  shall  see  when  we  come  to  examine  the  present 
law  of  descent  as  prescribed  by  the  revised  statutes  of  1830. 

Before  we  proceed  to  examine  the  several  rules  or  canons  of  de- 
scents, a  few  more  observations  will  be  added.  If  the  next  heir  of 
the  person  last  seised  be  an  alien,  the  lands  do  not  escheat,  but  go 
to  some  remoter  heir  who  is  capable  of  taking  by  descent.  {Ley- 
man  V.  Aheel,  16  John.  30.) 

The  same  rule  of  descent  which  governs  in  the  case  of  corporeal 
hereditaments  governs  also  in  the  case  of  incorporeal  hereditaments. 
They  are  real  property,  and  are  subject  to  the  like  rules.     {Id.) 

A  person  who  has  a  vested  remainder  in  fee  simple,  expectant  on 
the  determination  of  a  present  freehold  estate,  has  such  a  seisin  in 
law,  when  the  estate  is  acquired  by  purchase,  as  will  constitute  him 
a  stirps  or  stock  of  descent.  {Wendell  v.  Crandall,  1  Comst.  491, 
affirming  Vanderheyden  v.  Crandall,  2  Denio,  9.) 

The  rule  that  the  descent  between  brothers  is  immediate,  and  not 
impeded  by  the  alienage  of  their  father,  holds  between  one  of  them 
and  the  representatives  of  the  other,  and  also  betweeen  the  repre- 


326  FIRST  RULE  OF  DESCENT. 

sentatives  of  both  of  them.  Hence  the  alienage  of  the  common 
grandfather  does  not  impede  descent  between  cousins,  the  children 
of  brothers  who  were  citizens,  and  capable  of  transmitting  by  de- 
scent. {McGregor  v.  Comstock,  3  Comst.  408.)  In  that  case  the 
death  of  the  ancestor  occurred  prior  to  1830. 

We  will  now  proceed  to  examine  the  rules  or  canons  of  descent, 
as  they  are  prescribed  by  the  revised  statutes,  and  shall  have  occa- 
sion to -compare  them  with  those  antecedently  in  force. 

The  general  requirement  of  the  law  is  that  the  real  estate  of  every 
person  who  shall  die  without  devising  the  same,  shall  descend  in  the 
manner  following  :  1.  To  his  lineal  descendants.  2.  To  his  father, 
3.  To  his  mother  ;  and  4.  To  his  collateral  relatives  ;  subject  in  all 
cases  to  the  rules  and  regulations  prescribed  in  the  act.  (1  JR.  S. 
751,  §1.) 

I.  The  first  rule  or  canon  of  descents  is  that  if  the  intestate  shall 
leave  several  descendants  in  the  direct  line  of  lineal  descent,  and  all 
of  equal  degree  of  consanguinity  to  such  intestate,  the  inheritance 
shall  descend  to  such  persons  in  equal  parts,  as  tenants  in  common, 
however  remote  from  the  intestate  the  common  degree  of  consan- 
guinity may  be.     {Id.  §§  2,  17.) 

This  is  the  same  as  the  first  canon  under  the  act  of  1786,  with 
the  exception  that  the  latter  act  applied  only  to  cases  of  the  death 
of  the  party  last  seised,  leaving  other  cases  when  the  ancestor  had 
been  disseised,  or  his  right  was  contingent  or  executory,  to  be  de- 
termined by  the  rules  of  the  common  law.  The  cases  cited  on  a 
preceding  page  afi'ord  apt  illustrations  of  the  effect  of  that  pro- 
vision. 

The  rule  at  common  law,  as  laid  down  by  Blackstone,  Cruise  and 
the  other  approved  English  writers,  was,  that  inheritances  shall  lin- 
eally descend  to  the  issue  of  the  person  who  last  died  actually  seised 
i)i  infinitum;  but  shall  never  lineally  ascend. 

The  original  rule,  it  will  be  perceived,  required  that  the  ancestor 
had  no  capacity  to  transmit  the  descent  to  his  heirs,  unless  he  was 
the  person  last  seised  of  the  actual  freehold  and  inheritance. 

The  nature  of  seisin,  and  the  difference  between  a  seisin  in  laiu 
and  a  seisin  in  deed,  have  been  explained  in  a  previous  chapter. 
Where  a  person  acquired  a  fee  simple  in  lands  by  descent,  he  ac- 
quired only  thereby  a  seisin  in  law,  and  could  not,  on  his  death  be- 
fore entry,  transmit  the  estate  to  his  heir.  It  was  necessary,  at 
common  law,  that  he  should  make  an  actual  entry,  so  as  to  acquire 


FIRST  RULE  OF  DESCENT.  327 

a  seisin  in  deed^  before  he  had  such  a  title  as  would  pass  by  descent 
to  his  heir.  In  this  country  no  actual  entry  by  the  heir  is  necessary 
when  the  ancestor  dies  seised. 

There  were  some  exceptions  to  the  common  law  rule.  1.  When 
the  ancestor  acquired  the  estate  by  his  own  act,  he  was,  in  many 
cases,  allowed  to  transmit  it  to  his  heirs,  though  he  never  had  the 
actual  seisin  of  it  himself.  In  the  case  of  an  exchange,  if  both  par- 
ties died  before  either  entered,  the  exchange  was  totally  void  :  but 
if  one  of  the  parties  entered,  and  the  other  died  before  entry,  his  heir 
might  enter  and  be  in  by  descent.  {Shelleij's  case,  1  Co.  98  b.)  Trust 
estates  and  equitable  interests  might  be  transmitted  to  the  heir, 
without  an  actual  entry.  Such  is  undoubtedly  the  rule  with  us  at 
this  day. 

It  was  a  maxim  of  the  common  law,  that  the  freehold  should 
never,  if  possible,  be  in  abeyance.  The  lands,  therefore,  on  the  death 
of  the  party,  immediately  descend  to  the  person  who  is  heir  at  the 
time  of.  the  death  of  the  ancestor.  But  this  descent  might  be 
defeated  by  the  subsequent  birth  of  a  nearer  heir.  This  is  now  pro- 
vided for  by  the  statute.  Descendants  and  relatives  of  the  intestate, 
begotten  before  his  death  but  born  thereafter,  in  all  cases  inherit  in 
the  same  manner  as  if  they  had  been  born  in  the  lifetime  of  the  in- 
testate and.  had  survived  him,  (1  R.  S.  754,  §  18.)  This  is  not 
confined  to  lineal  descendants,  but  extends  to  collaterals,  A  child 
begotten  but  not  born,  is  for  all  purposes  under  the  law  of  descents, 
treated  as  in  being.  Thus  should  the  intestate  die  without  lineal 
descendants,  leaving  nephews  and  nieces  for  example  as  his  heirs,  a 
nephew  or  niece,  begotten  before  but  born  after  the  death  of  the 
intestate,  would  share  equally  with  his  or  her  brothers  and  sisters  in 
the  inheritance. 

The  rule  in  the  first  canon  of  descents  at  common  law,  excluding 
parents  and  all  lineal  ancestors  from  the  inheritance  of  their  off- 
spring, is  derived  from  the  feudal  law.  It  was  first  broken  in  upon  in 
our  act  of  1786  in  favor  of  the  father,  unless  the  inheritance  came  to 
the  child  from  the  mother,  in  which  latter  case  it  was  left  to  descend 
as  if  the  person  last  seised  had  survived  the  father. 

The  immediate  descent  to  the  children  is,  in  certain  cases,  sus- 
pended. By  the  act  of  1860,  ch,  90,  §  11,  it  is  enacted  that  at  the 
decease  of  the  husband  or  wife  intestate,  leaving  minor  child  or 
children,  the  survivor  shall  hold,  possess  and  enjoy  all  the  real  estate 
of  which  the  husband  or  wife  died  seised,  and  all  the  rents,  issues 


328  SECOKD  EULE  OF  DESCENT. 

and  profits  thereof  during  the  minority  of  the  youngest  child,  and 
one  third  thereof  during  his  or  her  natural  life.* 

II.  The  second  rule,  as  established  by  the  revised  statutes,  is  that 
if  any  of  the  children  of  the  intestate  be  living,  and  any  be  dead,  the 
inheritance  shall  descend  to  the  children  who  are  living,  and  to  the 
descendants  of  such  children  as  shall  have  died,  as  tenants  in  com- 
mon ;  so  that  each  child  who  shall  be  living,  shall  inherit  such  share 
as  would  have  descended  to  him,  if  all  the  children  of  the  intestate 
who  shall  have  died  leaving  issue,  had  been  living;  and  so 
that  the  descendants  of  each  child  who  shall  be  dead  shall  inherit 
the  share  which  their  parent  would  have  received  if  living.  (1  B.  S. 
751,  §§3,  17.) 

This  is  the  same  as  the  second  canon  in  the  act  of  1786,  except 
the  latter  derived  the  descent  from  the  person  last  seised,  of  which 
enough  has  been  already  said.  The  revised  statutes  speak  only  of 
the  intestate,  and  do  not  require  an  actual  technical  seisin  in  the 
ancestor  to  enable  him  to  transmit  the  estate  to  his  heirs. 

The  second  canon  at  common  law  was,  "  That  the  male  issue  shall 
be  admitted  before  the  female."  And  the  3d  canon  was,  "  That  when 
there  are  two  or  more  males  in  equal  degree,  the  eldest  only  shall 
inherit."  These  two  rules  giving  the  preference  to  the  males,  and 
establishing  the  rule  of  primogeniture,  we  have  already  said,  were 
abrogated  by  our  statutes  at  an  early  day.  They  have  probably 
been  repudiated  in  all  the  states  in  the  Union  whose  jurisprudence 
was  derived  from  the  common  law. 

*  This  act  is  strangely  defective,  and  will  in  some  cases  lead  to  the  grossest  injustice. 
Thus,  should  the  mother  die,  in  the  lifetime  of  the  father,  leaving  one  or  more  infant 
children,  and  should  the  father  marry  another  woman  and  then  die  himself,  the  second 
wife  would,  by  virtue  of  the  above  act,  hold,  possess  and  enjoy  all  the  real  estate  of 
which  her  husband  died  seised  during  the  minority  of  the  youngest  child,  without  any 
liability  on  her  part  to  support  those  children.  The  widow  is  not  bound  to  support 
the  minor  children  of  her  deceased  husband  by  a  former  wife,  any  more  than  the  hus- 
band is  bound  to  maintain  his  wife's  child  by  a  former  husband.  {Gay  \\  Ballou, 
4  Wend.  403.)  There  is  less  reason  for  a  liability  in  the  first  case  than  in  the  last.  It 
■was  a  strange  oversight  in  the  legislature  to  give  the  mother  in  law  all  the  estate,  and. 
leave  the  children  of  the  deceased  husband  destitute.  The  only  remedy,  as  the  law 
stands,  is  for  the  husband  to  make  a  will  and  not  die  intestate. 

Again,  this  statute  only  applies  to  the  cases  where  the  husband  died  seised,  and  does 
not  extend  to  cases  where  there  is  an  outstanding  life  estate,  nor  where  there  is 
an  outstanding  contingent  remainder  or  executory  devise,  and  he  dies  before  the 
termination  of  the  preceding  estate.  The  legislature  has  used  the  language  of  the  law 
of  1780,  in  preference  to  that  of  the  revised  statutes  of  1830. 


SECOND  RULE  OF  DESCENT.  329 

Both  the  doctrine  of  primogeniture  and  the  preference  of  males  to 
females  are  of  feudal  origin. 

The  second  rule,  as  adopted  by  the  revised  statutes,  applies  to 
descendants  of  the  intestate  entitled  to  share  in  his  estate,  but  who 
are  of  unequal  degrees  of  relationship  to  him.  Those  nearest  of  kin- 
dred to  him  take  the  same  shares  that  they  would  if  those  who  have 
died  leaving  children  had  survived ;  and  the  issue  of  the  deceased 
take  the  share  that  would  have  fallen  to  their  ancestor.  Thus,  if  a 
father  dies,  leaving  one  son,  and  two  grandsons,  the  children  of  a  de- 
ceased son  or  daughter,  the  son  takes  one  half  the  estate  by  descent, 
and  the  grandsons  the  other  half,  being  one  quarter  to  each  ;  and  all 
as  tenants  in  common.  If  one  of  these  grandsons  shall  have  died 
leaving  two  sons  or  daughters,  in  the  case  supposed,  the  latter  will 
take  only  the  share  which  would  have  belonged  to  their  father,  as 
tenants  in  common :  That  is  to  say,  one  quarter  to  be  divided  be- 
tween them,  being  one  eighth  to  each.  They  inherit,  in  this  case, 
peo'  stijyes,  or  by  representation ;  so  that  the  offspring  take  only 
the  share  which  would  have  belonged  to  their  ancestor,  had  he  been 
living.     (1  B.  S.  751,  §  4.) 

If  all  the  descendants  were  in  equal  degree  of  consanguinity  to  the 
intestate,  they  would  take  j^er  cajnta  under  the  first  rule.  Thus, 
if  the  intestate  leaves  twenty  grandchildren,  and  no  other  lineal  de- 
scendant, though  there  may  be  some  of  them  the  children  of  a  son 
and  others  of  a  daughter  of  the  intestate,  they  take  by  direct  de- 
scent from  their  grandfather,  in  equal  parts  as  tenants  in  common, 
^er  capita,  and  not  by  representation.  If  the  intestate  had  four 
children,  one  of  whom  had  two  children,  another  five,  another  six, 
and  another  seven,  making  twenty  grandchildren  in  all ;  and  if  their 
parents  be  all  dead  before  the  death  of  the  intestate,  in  that  case  these 
twenty  grandchildren  succeed  to  the  estate  as  tenants  in  common, 
each  having  a  twentieth  part  of  it.  {Pond  v.  Bergh,  10  Paige,  140. 
1  B.  S.  751,  §  4.) 

This  second  rule  of  descent  which  we  have  been  considering,  com- 
prehends within  it  all  that  is  valuable  in  the  fourth  canon  of  de- 
scent at  common  law.  That  canon  was :  That  the  lineal  descend- 
ants in  infinitum  of  any  person  deceased,  shall  represent  their  an- 
cestor ;  that  is,  shall  stand  in  the  same  place  as  the  person  himself 
would  have  done,  had  he  been  living.  Under  this  rule,  according  to 
the  English  law,  the  child,  grandchild  or  great-grandchild,  whether 


330  THIRD  RULE  OF  DESCENT. 

male  or  female,  of  the  eldest  son,  succeeded  before  the  younger  son  or 
the  daughters.  {Wliart.  Con.  517.)  This  is  thus  illustrated  by  the 
same  author:  If  a  man  have  two  sons  A.  and  B.,  and  A.  dies  leav- 
ing two  sons,  and  then  the  grandfather  die  ;  now  the  eldest  son  of 

A.  shall  succeed  to  the  whole  of  his  grandfather's  estate  ;  and  if  A. 
had  left  two  daughters  only,  they  would  have  succeeded  to  moieties 
of  the  whole  in  exclusion  of  B.  and  his  issue.  Under  our  rule,  in 
the  case  supposed,  the  two  sons  A.  and  B.  would  take  in  equal  parts 
as  tenants  in  common  ;  and  if  A.  had  left  two  daughters  only,  they 
would  have  taken,  as  tenants  in  common,  one  half  of  the  estate,  and 

B.  the  other  half. 

III.  The  third  canon  or  rule  of  descents  established  in  this  state, 
transmits  the  inheritance  of  the  intestate,  in  case  of  his  death  with- 
out lawful  descendants,  to  the  parents,  first  to  the  father,  and  in 
default  of  a  father  capable  of  taking,  then  to  the  mother  ;  in  both 
cases  under  certain  limitations  prescribed  by  the  act. 

This  rule  was  an  innovation  and  great  improvement  upon  the 
former  act,  and  still  more  so  upon  the  English  rule  of  descent,  which 
excluded  both  the  parents  altogether. 

The  statute  of  1786  provided  that  if  the  person  last  seised  should 
die  without  lawful  issue,  leaving  a  father,  then  the  inheritance  should 
go  to  the  father  of  the  said  person  so  seised,  in  fee  simple  ;  unless 
the  said  inheritance  came  to  the  person  so  seised,  from  the  part  of 
his  or  her  mother,  in  which  case  it  should  descend  as  if  such  person 
so  seised  had  survived  his  or  her  father.  (1  R.  L.  of  1813,  p.  53.) 
But  the  act  of  1786  made  no  provision  for  the  inheritance  passing 
to  the  mother  in  any  event. 

In  considering  this  rule  of  descent,  which  was  new  in  our  juris- 
prudence, and  a  departure  from  the  common  law,  it  is  proper  to 
consider  its  bearing  upon  each  of  the  parents  separately. 

1.  Upon  the  father.  The  revised  statutes  under  which  the  third 
rule  is  deduced,  transmit  the  inheritance  of  the  intestate  to  the  fath- 
er, in  default  of  lawful  descendants,- unless  it  came  to  the  intestate 
on  the  part  of  his  mother,  and  such  mother  be  living ;  but  if  such 
mother  be  dead,  the  inheritance,  descending  on  her  part,  goes  to  the 
father  for  life,  and  the  reversion  to  the  brothers  and  sisters  of  the 
intestate,  and  their  descendants  according  to  the  law  of  inheritance, 
by  collateral  relatives  before  provided ;  if  there  be  no  such  brothers, 
or  sisters,  or  their  descendants  living,  such  inheritance  descends  to 
the  father  in  fee.     (1  R.  S.  751,  §  5.) 


THIRD  RULE  OF  DESCEN"T.  331 

In  the  first  case,  the  father  takes  the  inheritance  in  fee  ;  and  in 
the  second,  he  takes  only  a  life  estate,  and  the  reversion  passes  to 
the  collateral  relatives  of  the  intestate  and  their  descendants.  If 
there  be  no  such  collateral  relatives  or  their  descendant  living,  the 
inheritance  goes  to  the  father  in  fee.  In  this  latter  case,  the  inher- 
itance which  came  to  the  intestate  on  the  part  of  the  mother  is  di- 
verted into  another  line  of  descent  from  that  which  it  followed  before 
the  revised  statutes. 

2.  Upon  the  mother.  On  the  death  of  the  intestate  without  de- 
scendants, leaving  no  father,  or  leaving  a  father  not  entitled  to  take 
the  inheritance  under  the  fifth  section,  and  leaving  a  mother  and 
brother  or  sister,  or  their  descendants,  then  the  inheritance  descends 
to  the  mother  for  life,  and  the  reversion  to  such  brothers  and  sisters 
of  the  intestate  as  may  be  living,  and  the  descendants  of  such  as 
may  be  dead,  according  to  the  law  of  inheritance,  provided  in  sub- 
sequent sections.  If,  however,  the  intestate  in  such  case  shall  leave 
no  brother  or  sister,  nor  any  descendant  of  a  brother  or  sister,  the 
inheritance  descends  to  the  mother  in  fee. 

The  operation  of  the  foregoing  rules  is  more  favorable  to  the  fa- 
ther than  the  mother.  The  father  takes  an  estate  in  fee,  in  prefer- 
ence to  the  brothers  and  sisters  of  the  intestate  or  their  descendants, 
but  the  mother,  under  the  like  circumstances,  takes  only  a  life  es- 
tate, with  a  reversion  to  the  brothers  and  sisters  of  the  intestate  who 
are  living,  and  the  descendants  of  such  as  may  be  dead.  In  the  ab- 
sence of  brothers  or  sisters  of  the  intestate,  or  their  descendants,  she 
takes  the  fee  simple.  In  this  respect  she  is  put  in  the  same  situa- 
tion of  the  father  under  the  same  circumstances,  in  relation  to  an 
inheritance  coming  to  the  intestate  on  the  part  of  his  mother. 

These  provisions  are  far  more  consonant  to  our  notions  of  justice 
than  those  of  the  law  of  1786,  and  greatly  to  be  preferred  to  the  seven 
rules  of  the  common  law.  Rules  somewhat  analogous  to  the  fore- 
going have  been  adopted  in  the  other  states,  but  it  does  not  fall 
within  the  compass  of  this  treatise  to  arrange  them  in  order.  These 
rules  have  now  been  in  operation  in  this  state  for  over  thirty  years ; 
have  met  with  the  approbation  of  the  public,  and  have  led  to  no 
serious  controversy. 

The  tendency  of  our  legislature  for  the  last  few  years  has  been  to 
mitigate  those  parts  of  our  jurisprudence  having  their  origin  in  feu- 
dal principles,  which  bore  with  unjust  severity  upon  females.  The 
acts  of  1848  and  1849  relative  to  the  separate  right  of  married 


332  FOURTH  RULE  OF  DESCENT. 

women,  and  that  of  1860,  chapter  90,  all  of  which  have  been  already 
adverted  to,  are  the  offspring  of  that  policy. 

The  statute  does  not  extend  the  rule  to  the  grand  parents,  who 
therefore  do  not  succeed  on  failure  of  the  parents  or  other  kindred 
of  the  intestate.  At  common  law  they  could  not  inherit  from  their 
grandchildren,  and  the  law  in  that  respect  is  unaltered. 

IV.  The  fourth  rule  or  canon  of  descents  is,  that  if  there  be 
no  lawful  descendants  of  the  intestate,  and  no  father  or  mother  ca- 
pable of  inheriting  the  estate,  it  descends,  in  the  cases  thereafter 
specified,  to  the  collateral  relatives  of  the  intestate ;  and  if  there  be 
several  such  relatives  all  of  equal  degree  of  consanguinity  to  the  in- 
testate, the  inheritance  descends  to  them  in  equal  parts,  however 
remote  from  the  intestate  the  common  degree  of  consanguinity  may 
be.     (1  R.  8.  752,  §  7.) 

If  all  the  brothers  and  sisters  of  the  intestate  be  living,  the  inher- 
itance descends  to  such  brothers  and  sisters ;  if  any  of  them  be  liv- 
ing, and  any  be  dead,  then  to  the  brothers  and  sisters  and  every  of 
them  who  are  living,  and  to  the  descendants  of  such  as  shall  have 
died ;  so  that  each  brother  or  sister  who  shall  be  living  shall  inherit 
such  share  as  would  have  descended  to  him  or  her  if  all  the  brothers 
and  sisters  of  the  intestate,  who  shall  have  died  leaving  issue,  had 
been  living ;  and  so  that  such  descendants  shall  inherit  the  share 
which  their  parent  would  have  received,  if  linng,     (7c?.  §  8.) 

This  rule  embraces  the  whole,  or  parts  of  the  third,  fourth  and 
fifth  rules  of  the  act  of  1786,  with  modifications.  It  takes  the  place 
of  the  fifth  case  of  the  common  law,  which  was  broader ;  that  on 
failure  of  lineal  descendants  or  issue  of  the  2Jerson  last  seised,  the 
inheritance  shall  descend  to  his  collateral  relatives,  being  of  the 
blood  of  the  first  purchaser,  subject  to  the  three  preceding  rules. 

The  great  princi})le  of  the  common  law  on  which  the  doctrine  of 
collateral  inheritance  depends,  is,  according  to  Blackstone,  Cruise,  and 
the  other  systematic  writers  on  the  subject,  that  upon  failure  of  issue 
of  the  last  proprietor,  the  estate  shall  descend  to  the  blood  of  the 
first  purchaser ;  or  that  it  shall  result  back  to  the  heirs  of  the  body 
of  that  ancestor  from  whom  it  either  really  has,  or  is  supposed  by 
fiction  of  law,  to  have  originally  descended.  Instead  of  searching  for 
the  first  piu-chaser,  the  New  York  rule  seeks  to  continue  the  estate 
in  the  family  of  the  intestate.  It  gives  a  paramount  importance  to 
proximity  of  kindred.  It  shows  no  preference  to  males  over  females, 
and  disregards  entirely  the  doctrine  of  primogeniture. 


FIFTH  RULE  OF  DESCENT.  333 

Under  the  former  statute  the  supreme  court  held,  in  Jackson  v. 
Thurman,  (6  John.  322,)  that  in  the  case  of  lineal  descendants  of 
the  person  last  seised,  if  all  the  descendants  were  of  equal  degree  of 
consanguinity  to  him  they  should  take  equally,  however  remote  they 
might  all  be  from  him.  And  if  any  of  that  class  had  died  leaving 
issue,  that  such  issue  should  take  as  the  representatives  of  the  de- 
ceased relatives  of  that  class.  But  in  relation  to  collateral  heirs,  a 
different  rule  was  adopted ;  so  that  if  the  nearest  relatives  of  the 
deceased  were  nephews  and  nieces,  they  did  not  take  equally,  although 
they  all  stood  in  the  same  degree  of  consanguinity  to  the  testator  ; 
hut  they  took  only  as  the  representatives  of  their  deceased  parents. 
And  no  provision  was  made  by  the  fifth  canon  of  descents  for  the 
representative,  or  even  for  equality  among  relatives  of  the  same 
degree,  beyond  brother's  and  sister's  children.  (1  L.  of  1813,^.  53, 
§  3.)  Hence,  the  issue  of  nephews  and  nieces  could  not  take.  But 
the  object  of  the  8th,  9th  and  10th  sections  of  the  revised  statutes 
under  consideration,  says  the  chancellor  in  Pond  v.  Bergli,  (10  Paige, 
148,)  was  to  place  the  law  of  descents  among  lineal  and  collateral 
relatives  upon  the  same  footing  in  this  respect.  The  class  of  nearest 
relatives  of  the  deceased  not  only  take  equally  when  they  are  his 
only  heirs  at  law,  but  all  the  original  members  of  that  class  take 
equally,  by  themselves,  or  by  their  representatives  when  some  of  them 
have  died  leaving  issue ;  in  the  same  manner  as  if  they  had  survived 
the  person  last  seised  and  had  then  died  intestate.  And  thus  the 
descendants  of  nephews  and  nieces  were  allowed  to  take.  {See  Re- 
port  of  Eevisers,  3  R.  S.  603,  2d  ed.  Hannan  v.  Oshorn,  4  Paige, 
336,  340.  Brown  v.  Burlingham,  5  Sand.  418.  McGregor  v. 
Comstocl*',  3  Comsf.  408.) 

The  descendants  take  j^er  capita  when  they  stand  in  equal  degree 
of  consanguinity  to  the  intestate,  and  per  stirpes,  when  they  stand 
in  different  degrees  of  relationship  to  the  common  ancestor.  These 
hold,  however  remote  they  may  be  in  kindred  to  the  common  stock. 

y.  The  fith  rule  is,  that  in  default  of  lineal  descendants,  parents, 
brothers  and  sisters,  and  their  descendants,  the  inheritance  descends 
1.  To  the  brothers  and  sisters  of  the  father  of  the  intestate,  in  equal 
shares,  if  all  be  living.  2.  If  any  be  living,  and  any  shall  have  died 
leaving  issue,  then  to  such  brothers  and  sisters  as  shall  be  living, 
and  to  the  descendants  of  such  of  the  said  brothers  and  sisters  as 
shall  have  died.  3.  If  all  such  brothers  and  sisters  shall  have  died, 
then  to  their  descendants.     ^ 


334  SIXTH  RULE  OF  DESCENT. 

In  all  these  cases  the  inheritance  descends  in  the  same  manner  as 
if  all  such  brothers  and  sisters  had  been  the  brothers  and  sisters  of 
the  intestate.  (1  R.  S.  752,  §  10.)  They  take  per  cajnta  if  in 
equal  degrees,  otherwise  per  stirpes. 

This  rule  assumes  that  the  estate  was  acquired  by  the  intestate 
by  other  means  than  by  a  descent  from  either  of  his  parents.  This 
leads  to  the  next  rule. 

VI.  The  sixth  rule  is,  that  if  the  inheritance  came  to  the  intes- 
tate on  the  part  of  his  father,  then  the  brothers  and  sisters  of  the 
father,  and  their  descendants,  have  the  preference,  and  in  default  of 
them,  the  estate  descends  to  the  brothers  and  sisters  of  the  mother, 
and  their  descendants.     (1  R.  S.  753,  §  11.) 

But  if  the  inheritance  shall  have  come  to  the  intestate  on  the 
part  of  his  mother,  then  her  brothers  and  sisters,  and  their  descend- 
ants, have  the  preference ;  and  in  default  of  them,  the  brothers  and 
sisters  on  the  father's  side,  and  their  descendants,  succeed  to  the  in- 
heritance.    (Id.  §  12.) 

Where  the  inheritance  has  not  come  to  the  intestate  on  the  part 
either  of  the  father  or  mother,  it  descends  to  the  brothers  and  sisters 
both  of  the  father  and  mother  of  the  intestate,  in  equal  shares,  and 
to  their  descendants,  in  the  same  manner  as  if  all  the  brothers  and 
sisters  had  been  the  brothers  and  sisters  of  the  intestate.     {Id.  §  13.) 

The  sixth  canon  of  descent  at  common  law  was,  that  the  collateral 
heir  of  the  person  last  seised  must  be  his  next  collateral  kinsman  of 
the  whole  blood.  And  the  seventh  and  last  canon  was,  that  in  col- 
lateral inheritances,  the  male  stock  must  be  preferred  to  the  female; 
that  is,  kindred  derived  from  the  blood  of  the  male  ancestor,  however 
remote,  shall  be  admitted  before  those  from  the  blood  of  the  female, 
however  near,  unless  when  the  lands  have,  in  fact,  descended  from 
a  female.  (Cruise's  Dig.  tit.  29,  cJiajJ.  3.)  Both  these  canons  were 
substantially  abrogated  by  the  law  of  1786.  They  are  entirely  so  by 
the  preceding  canons,  or  rules  derived  from  the  revised  statutes. 
In  addition  to  which,  it  is  expressly  enacted  in  the  15th  section,  that 
relatives  of  the  half  blood  shall  inherit  equally  with  those  of  the 
whole  blood  in  the  same  degree ;  and  the  descendants  of  such  rela- 
tives shall  inherit  in  the  same  manner  as  the  descendants  of  the 
whole  blood ;  unless  the  inheritance  came  to  the  intestate  by  de-- 
scent,  devise  or  gift  of  some  one  of  his  ancestors  ;  in  which  case  all 
those  who  are  not  of  the  blood  of  such  ancestor  shall  be  excluded 
from   such   inheritance.      [Champlin  v.    Baldwin,  1  Paige,  562. 


ILLEGITIMATES.     '  335 

Broim  V.  Burlingham,  5  Sandf.  418.)  The  terms  "  the  Mood"  of 
the  ancestor,  in  the  15th  section  of  the  statute,  include  his  relations 
of  the  half  blood.     {Beebe  v.  Griffin,  4  Kern.  235.) 

The  case  of  illegitimates  has  already  been  adverted  to  in  a  pre- 
ceding chapter.  The  question  with  regard  to  them  arises  in  two 
aspects :  1st,  with  respect  to  a  descent  from  them  ;  and  2d,  in  rela- 
tion to  their  capacity  to  take  by  descent. 

The  first  case  is  provided  for  in  the  revised  statutes,  (1  R.  S.  753, 
§  14,)  by  directing  the  inheritance  of  an  illegitimate,  who  dies  with- 
out descendants,  to  descend  to  his  mother ;  if  she  be  dead,  it  then 
descends  to  the  relatives  of  the  intestate  on  the  part  of  the  mother, 
as  if  the  intestate  had  been  legitimate.  The  meaning  is  that  if  the 
mother  be  dead  at  the  time  of  the  death  of  the  intestate.  If  the 
mother  be  living  at  the  time  of  the  death  of  an  illegitimate  intestate, 
the  case  provided  for  in  the  statute  does  not  arise,  and  the  common 
law  rule  governs.  By  the  common  law,  a  person  of  illegitimate 
birth,  not  having  inheritable  blood,  can  neither  inherit  lands  him- 
self, nor  transmit  them  by  descent  to  any  other  person  except  his 
own  legitimate  offspring,  or  persons  otherwise  capable  of  inheriting, 
claiming  by  inheritance  from  or  through  him.  {St.  John  v.  Nor- 
thiqj,  23  Barb.  25.)  With  respect  to  his  offspring  and  their  de- 
scendants, he  is  a  new  stock,  from  which  the  inheritance  is  to  be 
derived. 

2.  Though  the  revised  statutes  thus  gave  an  illegitimate  a  quali- 
fied capacity  to  transmit  the  inheritance  at  his  death  to  his  living 
mother,  in  case  of  a  default  of  issue,  they  made  no  provision  in  fa- 
vor of  an  illegitimate's  taking  the  inheritance  by  descent  from  any 
person.  The  act  of  1855  (ch.  547)  was  made  for  this  contingency. 
It  provides  that  in  default  of  lawful  issue  of  the  mother,  illegitimate 
children  may  inherit  real  and  personal  property  from  their  mother, 
as  if  legitimate.  It  was  prospective,  and  was  not  to  affect  any  right 
or  title  in  or  to  any  real  or  personal  property  already  vested  in  law- 
ful heirs  of  any  person  theretofore  deceased.  In  case  the  mother 
should  marry  and  have  lawful  issue,  the  illegitimate  offspring  is  left 
as  at  common  law,  without  capacity  to  take  by  descent  from  his 
mother,  or  any  other  person. 

The  revised  statutes,  in  conclusion,  enact  that  in  all  cases  not 
provided  for  by  the  foregoing  rules,  the  inheritance  shall  descend 
according  to  the  course  of  the  common  law.  (1  B.  S.  753,  §  16.)  It 
will  rarely  happen  that  a  case  will  occur  which  has  not  been  pro- 


336  ■    ESTATES  TAIL. 

vided  for.  None  but  some  remote  collateral  kindred  can  ever  fall 
"within  its  provisions.  If  such  a  case  should  occur,  it  must  be  de- 
termined upon  common  law  principles,  in  which  the  right  of  primo- 
geniture, the  preference  of  males  to  females,  and  the  exclusion  of  the 
half  blood,  will  again  control  the  distribution  of  the  estate.  Had 
the  legislature  adopted  for  these  remote  cases  of  kindred,  the  rule 
of  the  statute  of  distributions  relative  to  personal  estates,  and  dis- 
tributed the  property  to  the  next  of  kin  in  equal  degree  to  the  in- 
testate and  their  legal  representatives,  when  the  case  did  not  fall 
within  any  of  the  preceding  rules,  there  would  have  been  no  occasion 
to  resort  to  the  doctrines  of  the  common  law  for  any  case. 

For  such  a  supposable  case,  which  may  by  possibility  occur,  and 
for  such  a  case  only,  it  may  not  be  out  of  place  to  give  Lord  Coke's 
explanation  in  what  order  the  attribute  of  dignity  of  blood  is  applied 
by  legal  intendment.  This  is  compendiously  arranged,  from  Coke's 
Commentary,  by  Mr.  Cruise,  (Co.  Lit.  10  a,  12  a;  Cruise's  Dig.  tit. 
29,  ch.  3,)  in  this  manner :  1.  To  the  male  stock  of  the  paternal 
line.  2.  The  female  stock  of  the  paternal  line.  3.  The  male  branches 
of  the  female  stock  of  the  paternal  line.  4.  The  female  branches  of 
the  female  stock  of  the  paternal  line.  5.  The  male  stock  of  the 
maternal  line.  6.  The  female  branches  of  the  male  stock  of  the 
maternal  line.  7.  The  male  branches  of  the  female  stock  of  the  ma- 
ternal line.  8.  The  female  branches  of  the  female  stock  of  the  ma- 
ternal line.* 

The  rules  under  our  former  statute  of  descents,  the  act  of  1786, 
did  not  apply  to  the  descent  of  estates  in  remainder  or  reversion  ex- 
pectant on  an  estate  of  freehold  ;  because  when  there  was  a  preceding 
estate  of  freehold,  the  actual  seisin  was  in  the  possession  of  that 
estate,  and  not  in  the  person  entitled  to  the  remainder  or  reversion. 
This  rule  of  the  common  law,  we  have  already  intimated,  has  been 
changed  in  this  state  by  the  operation  of  our  law  of  descents.  The 
risht  of  the  ancestor  descends  on  his  death  to  his  heirs,  whether  his 
right  was  in  possession,  remainder  or  reversion.  (Vanderheyden  v. 
Crandall,  2  Denio,  9.) 

Prior  to  1782,  estates  tail  existed  in  this  state  and  were  occasion- 
ally created.  By  that  act  and  the  act  by  which  it  was  revived  and 
repealed  in  1786,  estates  in  fee  tail,  whether  existing  in  1782  or  there- 

*  Professor  Greenleaf  has  inserted,  in  his  valuable  edition  of  Cruise's  Digest,  vol.  2, 
from  page  166  to  179,  an  interesting  summary  of  the  rules  of  descent  in  the  various 
states  of  the  Union. 


ESTATE  IN  FEE  TAIL.  337 

after  created,  were  converted  into  estates  in  fee  simple  absolute. 
(1  R.  L.  52.)  This  law  we  have  already  seen  was  incorporated  in 
the  revision  of  1830,  and  is  still  the  law  of  this  state ;  so  that  there 
cannot  be  at  present  any  such  estate  in  this  state.  In  the  investi- 
gation of  old  titles  it  has  sometimes  been  found  necessary  to  inquire 
whether  a  specified  estate  was  an  estate  in  fee  simple  or  fee  tail. 
This  was  the  case  in  Vanderheyden  v.  Crandall,  (supra.)  It  is 
therefore  deemed  expedient  here  merely  to  define  an  estate  in  fee 
tail,  as  it  formerly  existed,  and  give  the  rule  of  descent  with  refer- 
ence to  it. 

An  estate  in  fee  tail  grew  out  of  the  statute  De  donis  condition- 
alihus,  (13  Edw.  1,  ch.  1,)  by  which  estates  of  inheritance  were 
made  descendible  to  some  particular  heirs  only  of  the  person  to 
whom  they  were  granted,  and  not  to  his  heirs  generally.  The  donee 
of  an  estate  tail  was  the  first  purchaser  of  it,  and  none  save  those 
who  were  lineally  descended  from  him,  and  answered  the  limitation, 
general  or  special,  could  inherit  it  per  formam  doni.  But  primo- 
geniture amongst  the  males,  and  coparcenary  amongst  the  females, 
who  were  not  excluded  by  the  original  gift,  existed,  and  a  posthu- 
mous child  was  not  prejudiced  by  reason  of  his  coming  after  prior 
children. 

In  tracing  descent,  then,  to  an  estate  tail,  the  maxim  seisina 
facit  stipetem  never  applied,  for  the  issue  are  as  much  within  the 
donor's  intention,  and  as  personally  and  precisely  described  in  the 
gift  as  any  of  their  ancestors ;  and  consequently  the  half  blood  is 
not  excluded,  since  the  issue  in  tail  is  ever  of  the  whole  blood  to 
the  donee ;  neither  does  the  rule  of  possessio  fratris  obtain. 
{Wharton's  Conv.  534.) 

The  statute  of  descents  does  not  affect  the  estate  of  a  husband  as 
tenant  by  the  curtesy,  or  of  a  widow  as  tenant  in  dower.  Nor  does 
it  prevent  real  estate  held  in  trust  for  any  other  person,  when  not 
derived  by  the  person  for  whose  use  it  is  held,  from  descending  to 
his  heirs,  according  to  the  provisions  of  the  act  which  we  have  been 
considering.     (1  R.  S.  754,  §§  20,  21.) 

In  determining  the  value  of  the  real  estate  descended  to  an  heir, 
the  conveyancer  will  sometimes  have  to  inquire  whether  there  be 
any  incumbrance  upon  it,  either  created  by  the  original  owner,  or 
by  the  heir  after  the  death  of  the  ancestor ;  or  whether  by  reason 
of  any  advancement  by  the  ancestor  in  his  lifetime  the  value  of  the 
portion  belonging  to  the  heir  is  affected. 
Will.— 22 


338  ADVANCEMENT. 

The  doctrine  of  advancement  was  carried  into  the  law  of  descent 
"by  the  legislature,  in  1830,  from  the  statute  of  distributions,  which 
latter  was  drawn  from  the  English  statute  on  the  same  subject,  and 
had  reference  only  to  the  personal  assets.  Under  our  law  of  dis- 
tributing real  estate,  there  is  the  same  equity  tha't  the  child  who  has 
been  advanced  by  the  parent  in  his  lifetime,  with  a  view  to  a  por- 
tion or  settlement  in  life,  should  bring  it  into  hotchpot  with  his 
brothers  and  sisters  not  thus  favored,  as  in  the  case  of  the  distribu- 
tion of  the  personal  estate.  The  statute  has  therefore  wisely  enact- 
ed, that  if  any  child  of  an  intestate  shall  have  been  advanced  by 
him  by  settlement  or  portion  of  real  or  personal  estate  or  of  both 
of  them,  the  value  thereof  shall  be  reckoned  for  the  purpose  of  this 
section  only,  as  part  of  the  real  and  personal  estate  of  such  intestate, 
descendible  to  his  heirs,  and  to  be  distributed  to  his  next  of  kin 
according  to  law ;  and  if  such  advancement  be  equal  or  superior  to 
the  amount  of  the  share  which  such  child  would  be  entitled  to  re- 
ceive of  the  real  and  personal  estate  of  the  deceased,  as  above  reck- 
oned, then  such  child  and  his  descendants  shall  be  excluded  from 
any  share  in  the  real  and  personal  estate  of  the  intestate.  (1  R.  S. 
754,  §  23.)  But  if  such  advancement  be  not  equal  to  such  share, 
such  child  and  his  descendants  shall  be  entitled  to  receive  so  much 
only  of  the  personal  estate,  and  to  inherit  so  much  only  of  the  real 
estate  of  the  intestate  as  shall  be  sufficient  to  make  all  the  shares 
of  the  children  in  such  real  and  personal  estate  and  advancements 
to  be  equal  as  near  as  can  be  estimated.     (Id.  §  24.) 

To  obviate  any  controversy  as  to  the  value  of  any  real  or  personal 
estate  so  advanced,  it  is  provided  that  it  shall  be  deemed  that,  if 
any,  which  was  acknowledged  by  the  child  by  an  instrument  in 
wiiting ;  otherwise  its  value  shall  be  estimated  according  to  the 
worth  of  the  property  when  given.     (Id.  §  25.) 

It  is  not  every  sum  of  money,  or  other  valuable  thing  which  an 
indulgent  parent  may  furnish  one  child  in  preference  to  another, 
that  will  constitute  an  advancement,  within  the  meaning  of  the 
law.  Nor  wiU  the  maintaining  or  education  of  a  child,  without 
a  view  to  a  portion  or  settlement  in  life,  constitute  an  advancement. 
(Id.  §  26.)  The  parent  is  bound  to  support  and  educate  his  off- 
spring according  to  his  state  and  circumstances  in  life.  (  Vail  v. 
Vail,  10  Barb.  69.  3IcBae  v.  McBae,  3  Bradf.  199.)  And 
though  the  education  or  support  of  one  be  more  expensive  than 


DUTY  OF  CONVEYANCER.  339 

that  of  the  others,  this  difference  does  not  per  se  constitute  an  ad- 
vancement. 

The  revised  statutes  make  the  heirs  of  every  person  who  shall 
have  died  intestate,  and  the  heirs  and  devisees  of  any  person  who 
shall  have  died  after  the  making  of  his  last  will  and  testament,  re- 
spectively liable  for  the  debts  of  such  person,  arising  by  simple 
contract  or  by  specialty,  to  the  extent  of  the  estate,  interest  and 
right  in  the  real  estate  which  shall  have  descended  to  them  from,  or 
been  devised  to  them  by  such  person.  (2  B.  S.  452,  §  22.)  But 
the  heirs  are  not  liable  for  any  such  debt,  unless  it  shall  appear  that 
the  deceased  left  no  personal  assets  within  this  state  to  be  admin- 
istered, or  that  the  personal  assets  of  the  deceased  were  not  suffi- 
cient to  pay  and  discharge  the  same ;  or  that  after  due  proceedings 
before  the  proper  surrogate's  court  and  at  law,  the  creditor  has  been 
unable  to  collect  such  debt,  or  some  part  thereof,  from  the  personal 
representatives  of  the  deceased,  or  from  his  next  of  kin  or  lega- 
tees.    {Id.  §  33.) 

If  the  debts  of  the  intestate  have  been  reduced  to  judgment 
against  him  in  his  lifetime,  and  the  judgment  has  been  docketed 
in  proper  manner,  a  lien  is  created  upon  the  real  estate,  which  in- 
dependent of  the  above  statute  will  follow  it  into  whosesoever 
hands  it  may  pass.  The  first  inquiry,  therefore,  of  the  conveyancer 
who  is  called  upon  to  investigate  the  validity  of  the  title  of  the  heir, 
is  to  ascertain  the  nature  and  extent  of  the  title  of  the  ancestor, 
and  to  search  for  incumbrances,  by  judgment  or  mortgage,  against 
him. 

But  the  liability  of  the  heir  or  devisee  for  the  debts  of  the  deceas- 
ed is  not  confined  to  such  as  are  either  a  specific  or  general  lien 
upon  his  lands.  He  is  liable  also  for  the  simple  contract  or  specialty 
debts  of  the  deceased,  to  the  extent  of  the  interest  he  takes  in  the 
estate  by  descent  or  devise.  These  debts  are  an  equitable  lien  upon 
the  estate  in  the  possession  of  the  heir  or  devisee,  and  prior  in  time 
to  judgments  recovered  against  them  for  their  individual  debts. 
{Morris  v.  3Ioivatt,  2  Paige,  586.)  But  as  the  personal  estate  is 
the  primary  fund  for  the  payment  of  the  debts  of  a  deceased  person, 
his  heirs  are  not  liable  for  those  debts  unless  it  appears  that  the 
personal  assets  were  not  sufficient  to  pay  the  same,  or  that  after 
due  proceedings  before  the  surrogate  and  at  law,  the  creditor  has 
been  unable  to  collect  such  debt  from  the  executor  or  administrator, 
or  from  the  next  of  kin  or  legatees.     Thus,  a  suit  at  law  against 


340  SALE  OF  EEAL  ESTATE. 

the  prior  parties  is  an  essential  preliminaiy  to  a  right  to  sne  the 
heirs;  and  the  latter  are  to  be  sued  jointly  in  equity.  {Stuart  v. 
Kissam,  11  Barb.  271.) 

By  the  provisions  of  the  title  of  the  revised  statutes  relative  to 
the  powers  and  duties  of  executors  and  administrators  in  relation  to 
the  sale  and  disposition  of  the  real  estate  of  their  testator  or  intes- 
tate, the  personal  representatives  are  authorized  to  apply  to  the 
suiTOgate  for  a  sale  of  the  real  estate  of  the  deceased  for  the  pay- 
ment of  his  debts,  at  any  time  within  three  years  after  the  granting  of 
letters  testamentary  or  of  administration.  And  if  such  personal  rep- 
resentatives neglect  to  apply  to  the  suiTogate,  any  creditor  is  author- 
ized to  make  a  similar  application  to  the  surrogate  to  compel  such 
sale  after  citing  the  executors  or  administrators  to  account.  (2  R.  S. 
100,  §  1.  1  id.  108,  §  48,  amended  in  1837, 1843  and  1847;  3  id. 
196,  5tli  ed.)  The  legislature  having  furnished  this  cheap  and  sum- 
mary mode  of  providing  for  the  payment  of  the  creditors  out  of  the 
real  estate  of  the  deceased,  when  his  personal  estate  is  insufficient 
for  that  purpose,  absolutely  prohibited  the  creditor,  by  the  53d  sec- 
tion of  the  same  title,  from  wasting  the  real  estate  by  useless  suits 
in  a  court  of  equity  against  the .  heirs  or  devisees,  during  the  time 
limited  for  the  institution  of  proceedings  before  the  surrogate  for 
such  sale.  The  first  clause  of  that  section  in  terms  declares,  that 
no  suit  shall  be  brought  against  the  heirs  or  devisees  of  any  real 
estate  in  order  to  charge  them  \^dth  the  debts  of  the  testator  or  in- 
testate, within  three  years  from  the  time  of  granting  letters  testa- 
mentary or  of  administration  upon  the  estate  of  their  testator  or 
intestate.  (Butts  v.  Genimg,  5  Paige,  257.  Schermerhorn  v.  Bar- 
Jiydt,  9  id.  45,  46.)  Although  since  the  decision  of  the  chancellor 
in  the  foregoing  cases,  the  48th  section  has  been  repealed  and  another 
substituted  in  its  place,  extending  the  time  within  which  a  creditor 
may  apply  to  the  surrogate  for  an  order  compelling  the  executors 
or  administrators  to  mortgage,  lease  or  sell  the  real  estate  of  the 
testator  or  intestate  for  the  payment  of  his  debts,  the  principle  then 
decided  is  not  changed.     {Skidmore  v.  Romaine,  2  Bradf.  122.) 

Though  the  heir  takes  an  absolute  title  to  the  land  descended, 
subject  only  to  be  defeated  or  charged  with  the  debts  of  the  testator 
or  intestate,  either  by  the  representatives  or  the  creditors  taking  the 
steps  authorized  by  the  statute,  it  will,  in  practice,  sometimes  be 
difficult  to  ascertain  when  the  land  is  entirely  free  from  a  liability 
to  be  thus  proceeded  against.     (  Wilson  v.  Wilson^  13  Barb.  252.) 


HEIRS  OR  CREDITORS  MAT  CONTEST  DEBTS.  341 

The  executors  or  administrators  are  expressly  limited  to  three  years 
from  the  date  of  their  letters,  within  which  to  make  the  apphcatiou 
to  the  surrogate.  If  they  omit  to  proceed  within  the  time  allowed 
for  that  purpose,  any  creditor  of  the  deceased  may  apply  to  the  sur- 
rogate for  an  order  for  the  executors  or  administrators  to  show  cause 
before  the  surrogate  why  they  should  not  be  required  to  mortgage, 
lease  or  sell  the  real  estate  of  the  deceased  for  the  papnent  of  debts. 
This  application  may  be  made  at  any  time  after  the  granting  of 
letters  testamentary  or  of  administration;  and  the  executor  or  ad- 
ministrator is  forbidden  to  show,  for  cause,  that  the  time  within 
ivhich  he  is  aUoioed  to  sell  the  same  has  expired.  There  is  a  good 
reason  why  the  executors  or  administrators  should  not  be  permitted 
to  allege  their  own  laches  in  this  respect,  as  a  bar  to  a  claim  of  a 
creditor.  But  the  law  has  not  taken  from  the  heirs  or  devisees,  or 
other  creditors,  the  right  of  interposing  the  statute  of  limitations, 
or  any  other  defense,  to  the  claim  of  the  creditor  who  makes  the 
application. 

1.  The  heirs  and  devisees  have  a  direct  interest  in  the  question ; 
and  to  remove  all  doubt  as  to  their  right  to  contest  the  validity  of 
the  claims  presented,  the  statute  has  expressly  granted  it  in  terms, 
and  forbid  the  admission  of  any  such  claim  by  an  executor  or  ad- 
ministrator, as  evidence  to  revive  the  same,  or  in  any  way  affect  it. 
(2  R.  S.  100,  §  10,  as  amended  hij  §  72  of  the  act  of  1837,  ch.  46, 
and  L.  of  1843,  ch.  172.  Shidmore  v.  Romaine,  2  Bradf.  122. 
Ferguson  v.  Broom,  1  id.  10.  Renioich  v.  Renivick,  1  id.  234. 
Wfcox  V.  Smith,  26  Barh.  316.     Martin  v.  Gage,  5  Seld.  398.)^ 

2.  Any  other  creditor  of  the  deceased,  and  probably  a  purchaser 
from  an  heir  or  devisee  of  the  deceased,  have  the  same  right  to  con- 
test the  validity  of  any  claim.  They  have  an  interest  in  the  fund 
which  the  court  will  protect.  {Mooers  v.  White,  6  John.  Ch.  360.) 
The  proceeding  before  the  suiTOgate  to  establish  claims  against  the 
estate  is  analogous  to  that  under  the  common  decree  in  an  adminis- 
tration suit.  In  the  latter  case  it  was  held  by  the  master  of  the 
rolls  in  Sheiven  v.  VanderJiorst,  (1  Russ.  &  Myl.  347,)  that  it  was 
competent  for  any  of  the  parties  interested  in  the  fund  to  set  up 
the  statute  of  limitations  in  bar  of  the  claim  of  a  creditor  seeking 
to  establish  his  debt  before  the  master,  although  the  executors  re- 
fused to  interfere.  The  decision  was  affirmed,  on  appeal,  by  Lord 
Brougham,  who  remarked  that,  without  saying  hov/  far  the  master 
himself  might  be  entitled  to  set  up  the  objection,  he  could  see  no 


342  APPLICATION  BY  CREDITOR. 

reason  why  it  miglit  not  be  taken  by  a  creditor,  or  a  volunteer,  as 
well  as  by  the  personal  representative.  {Id.  Mooers  v.  White, 
supra.      Wilcox  v.  Smith,  supra.      Willard  on  Executors,  317.) 

With  respect  to  an  application  by  a  creditor  to  the  surrogate  for 
an  order  on  the  executors  or  administrators  to  show  cause  why  he 
should  not  be  required  to  mortgage,  lease  or  sell  so  much  of  the 
real  estate  as  may  be  necessary  to  pay  the  debts  of  the  deceased, 
there  is  no  limitation  of  time  within  w^hich  it  may  be  made.     In 
this  respect  it  is  the  same  as  the  former  statute  in  relation  to  the 
application  of  executors  and  administrators.     And  yet,  under  that 
statute,  Chancellor  Kent  held  that  the  application  should  be  made 
within  a  year  from  the  granting  of  letters  testamentary  or  of  ad- 
ministration.    {Mooers  v.  White,  supra.)     And  the  supreme  court, 
without  prescribing  any  definite  period,  expressed  an  opinion  that 
the  lapse  of  fourteen  years  between  the  granting  of  administration 
and  an  application  to  a  surrogate  for  the  sale  of  real  estate,  was  a 
sufficient  cause,  without  explanation,  for  the  rejection  of  the  appli- 
cation.    {Jackson  v.  Robinson,  4  Werid.  436.)     In  the  last  men- 
tioned case,  the  question  arose  in  an  action  of  ejectment  brought 
by  a  party  claiming  title  under  a  deed  executed  by  an  administra- 
trix under  and  in  pursuance  of  a  sale  by  virtue  of  the  order  of  the 
surrogate  made  while  the  law  of  1813  was  in  force.     It  did  not  ap- 
pear that  the  objection  had  been  taken  before  the  suiTogate,  that 
an  unreasonable  period  had  elapsed  between  the  granting  of  the 
letters  and  the  application  for  the  order  of  sale.     The  defendant 
claimed  under  a  deed  from  the  heirs  at  law,  and  raised  this  question 
for  the  first  time  on  the  trial  of  the  ejectment,  and  called  upon  the 
court  to  hold  that  the  sale  under  the  surrogate's  order  was  void. 
But  the  court,  while  holding  that  the  surrogate  should,  in  the  ab- 
sence of  satisfactory  explanation,  have  denied  the  order  of  sale,  had 
the  objection  been  taken,  thought  it  could  not  be  pronounced  void 
in  this  collateral  action.     The  proper  remedy  doubtless  was  to  raise 
the  objection  before  the  surrogate,  and  on  its  being  overruled, 
appeal. 

It  was  perhaps  impossible  to  prescribe  a  limit  within  which  a 
creditor  might  be  required  to  make  the  application.  In  most  cases 
it  may  be  presumed  that  estates  will  be  fully  settled  up  during  the 
period  which  the  law  has  given  to  the  executors  and  administrators 
for  that  purpose.  The  right  given  to  the  creditors  to  become  ac- 
tors probably  applies  only  to  the  exceptional  cases  of  neglect  of  the 


TITLE  BY  PURCHASE.  343 

personal  representatives  to  make  tlie  application  within  tlie  time 
prescribed  for  tliem.  Public  policy,  says  Chancellor  Kent,  in 
Moores  v.  White,  (supra,)  requires  that  a  power  of  such  formida- 
ble import,  and  which  affects  the  bona  fide  jjurchaser  equally  with 
the  devisee,  should  bo  strictly  construed.  Nor  will  the  creditor  for 
whose  benefit  the  whole  provision  is  intended,  be  materially  affected. 
In  analogy  to  the  cases  of  llooers  v.  White,  and  Jackson  v.  Bob' 
inson,  (siipt-a,)  it  would  seem  that  the  surrogate  should  limit  the 
creditor  to  a  period  not  exceeding  a  year  from  the  expiration  of  the 
three  years  from  the  date  of  the  letters  testamentary  or  of  adminis- 
tration, unless  under  peculiar  circumstances,  a  longer  time  might 
be  adjudged  necessary  consistently  with  sound  policy  and  justice. 
The  defense  should  be  interposed  before  the  surrogate  at  the  time 
for  showing  cause. 

The  real  estate  may  also  be  charged  by  the  testator  with  the  pay- 
ment of  debts  and  legacies.  Such  charge  will  be  an  incumbrance 
on  it  in  whose  hands  soever  it  may  be.  It  wiU  be  necessary  for 
the  conveyancer  who  investigates  the  validity  of  the  title,  to  ex- 
amine the  last  will  and  testament  of  the  former  owner  to  see  whether 
the  real  estate  is  well  charged  with  debts  or  legacies,  and  to  ascer- 
tain whether  those  debts  and  legacies  have  been  paid  off  and  extin- 
guished. 

To  inquire  what  language  in  a  will  operates  to  create  a  charge 
upon  the  real  estate  of  the  testator,  a  more  appropriate  occasion 
will  arise,  when  we  come,  in  a  subsequent  chapter,  to  consider  the 
doctrine  of  wills  and  devises.  We  shall  therefore  postpone  a  more 
full  discussion  of  this  branch  of  our  subject,  till  then.  (See  post, 
ch.  9,  §  4.) 


CHAPTER  IV. 


OF  TITLE  BY  PURCHASE. 


We  stated  in  a  former  chapter,  that  the  mode  of  acquiring  title 
to  real  property  might  be  reduced  to  two,  by  descent  and  purchase. 
In  the  former  the  title  is  vested  in  a  person  by  the  operation  of  law, 
and  in  the  latter  by  the  act  and  agreement  of  the  party.  If  by 
the  term  purchase  we  are  to  understand  with  Littleton,  that  it  em- 
braces every  other  method  of  coming  to  an  estate,  but  merely  that 


344  ESCHEAT  AND  FORFEITURE. 

of  inheritance,  the  reducing  the  number  of  modes  by  which  a  title 
can  be  acquired  to  two,  descent  and  purchase,  is  sufficiently  accurate 
for  all  purposes. 

We  have  treated  in  the  last  chapter  of  title  by  descent.  We 
shall  treat  in  the  present  of  title  by  purchase.  It  embraces,  among 
others,  the  following  methods  of  acquiring  and  defending  the  title 
to  estates:  1.  Escheat;  2.  Forfeiture;  3.  Prescription;  4.  Adverse 
enjoyment;  5.  Occupancy;  6.  Election;  7.  Estoppel;  and  8.  Alien- 
ation.    We  shall  treat  of  them  in  their  order. 

Section  I. 
Of  Escheat  and  Forfeiture. 

1.  An  escheat  is  one  of  the  incidents  of  the  feudal  tenures.  It 
denotes,  according  to  the  systematic  waiters  on  this  subject,  an  ob- 
struction of  the  course  of  descent,  and  a  consequent  determination 
of  the  tenure,  by  some  unforeseen  contingency;  in  which  case  the 
land  naturally  results  back,  by  a  kind  of  reversion.,  to  the  original 
grantor  or  lord  of  the  fee.     (2  Bl.  Com.  244.) 

An  escheat  at  common  law  is  partly  of  the  nature  of  a  purchase, 
and  partly  of  descent.  It  was  a  purchase  so  far  as  it  was  necessary 
for  the  lord  to  enter  on  the  reverted  property  in  order  to  complete 
his  full  ownership  of  it;  and  it  was  a  descent  because  the  escheated 
property  followed  the  seignory,  and  was  inherited  along  with,  it,  by 
the  lord's  heir  at  law.  It  occurred  in  England  on  the  death,  intes- 
tate, of  the  tenant  without  heir  capable  of  inheriting,  and  on  his 
attainder  for  certain  crimes. 

The  laws  of  this  state  declare  that  the  people  in  their  right  of 
sovereignty  are  deemed  to  possess  the  original  and  ultimate  prop- 
erty in  and  to  all  lands  within  the  jurisdiction  of  this  state;  and 
it  is  enacted,  that  all  lands,  the  title  to  which  shall  fail  from  a  de- 
fect of  heirs,  shall  revert  or  escheat  to  the  people.    {IB.  8.  718,'  §  1.) 

There  are  two  cases  with  us  in  which  lands  escheat.  First,  when 
the  tenant  in  fee  dies  seised,  leaving  no  heir  capable  of  inheriting 
the  property,  and  making  no  valid  disposition  of  it  by  will;  and 
second,  when  lands  are  purchased  by  an  alien  who  cannot  hold  as 
against  the  state.  In  both  these  cases,  says  Bronson,  J.  the  prop- 
erty immediately  reverts  to,  and  vests  in  the  people,  as  the  original 
and  ultimate  proprietors  of  all  the  lands  within  the  state.  If  there 
be  an  outstanding  life  estate,  the  people  will  not  be  entitled  to  the 


ESCHEAT.  345 

possession  until  that  estate  has  terminated;  but  this  cannot  affect 
their  title  to  the  fee.     {The  People  v.  Conhlin,  2  Hill,  74.) 

It  would  seem  from  the  foregoing  remarks  of  the  learned  judge, 
that  to  entitle  the  state  to  the  real  estate  of  the  intestate  by  escheat, 
he  must  have  died  seised.  But  this  is  not  required  by  the  statute. 
In  the  case  before  the  court,  the  testator  having  no  relatives  but 
aliens,  de\ased  to  his  wife  for  life,  remainder  in  fee  to  aliens.  It 
was  held  that  the  estate  in  remainder  escheated  on  the  testator's 
death,  though  the  jaeople  could  not  enter  until  the  life  estate 
terminated. 

Some  of  the  cases  decided  in  this  state  arose  prior  to  the  revised 
statutes,  when  the  descent  of  real  property  was  deduced  from  the 
person  last  seised.  This  was  the  case  of  Jackson  v.  Jackson,  (7 
John.  214,)  in  which  it  was  held  that  if  the  next  heir  of  the  person 
last  seised  be  an  alien,  the  land  does  not  therefore  escheat,  but  goes 
to  a  remoter  heir,  if  there  be  any  who  is  capable  of  taking. 

By  the  common  law,  according  to  Mr.  Cruise,  if  lands  held  in 
trust  escheated  to  the  king,  he  held  them  free  from  the  trust.  Such 
would  have  been  the  rule  in  this  state,  with  reference  to  the  people, 
who  take  the  place  of  the  king,  but  for  our  legislation  on  the  sub- 
ject. The  revised  statutes  provide  that  all  escheated  lands,  when 
held  by  the  state  or  its  grantees,  shall  be  subject  to  the  same  trusts, 
incumbrances,  charges,  rents  and  services  to  which  they  would 
have  been  subject  had  they  descended;  and  the  supreme  court, 
formerly  the  court  of  chancery,  is  empowered  to  direct  the  attorney 
general  to  convey  such  lands  to  the  parties  equitably  entitled  there- 
to according  to  their  respective  rights,  or  to  such  new  trustee,  as 
inay  be  appointed  by  such  court.     (1  R.  S.  718,  §  2.) 

Although  all  the  lands  within  this  state  are  declared  to  be  allo- 
dial, so  that  the  entire  and  absolute  property  is  vested  in  the  owners 
according  to  the  nature  of  their  respective  estates;  and  all  feudal 
tenures  of  every  description,  with  all  their  incidents  are  abolished, 
an  exception  is  made  in  favor  of  escheat,  which  instead  of  goino-  to 
the  lord  as  at  common  law,  vests,  we  have  seen,  the  estate  in  the 
people,  with  its  burdens  as  well  as  benefits.     {Id.  §  3.) 

The  former  practice  in  this  state  to  obtain  the  possession  of  es- 
cheated lands  was,  under  the  statute  of  24th  March,  1801,  (1  K.  (k 
R.  310,)  by  a  wiit  of  escheat,  issued  out  of  chancery  on  the  appli- 
cation of  the  attorney  general;  and  the  inquisition  found  thereupon 
might  be  traversed;  and  on  a  traverse  of  it,  the  traverser  was  con- 


346  FORFEITED  ESTATES. 

sidered  as  a  defendant,  and  if  he  showed  that  the  people  had  no 
title,  though  he  proved  nothing  but  a  bare  possession  in  himself,  he 
was  entitled  to  judgment.  {The  People  v.  Cutting,  3  John.  1.) 
The  revised  statutes  have  changed  this  practice,  and  substituted  an 
action  of  ejectment,  which  is  superseded  in  modern  practice,  under 
the  code  by  a  civil  action.  (1  R.  S.  282;  1  id.  685,  5th  ed.)  The 
statute  now  contains  suitable  provisions  for  the  recovery  of  escheat- 
ed lands,  and  for  fulfilling  any  contracts  which  may  have  been  made 
by  the  person  last  seised,  or  by  any  person  from  whom  his  title  is 
derived,  so  far  as  to  convey  the  right  and  title  of  this  state, 
pursuant  to  such  contract,  without  any  covenants  of  warranty  or 
otherwise,  and  to  allow  all  payments  which  may  have  been  made  on 
such  contracts.  It  is  not  deemed  expedient  to  give  an  abstract  of 
the  statute,  or  pursue  the  subject  further. 

2.  We  have  a  statute  which  treats  of  the  recovery  of  forfeited 
estate.  (1 R.  S.  284.)  It  assumes  that  such  forfeiture  may  occur 
upon  a  conviction  or  outlawry  for  treason,  and  gives  to  the  attorney 
general  the  same  remedy  to  recover  real  estate  so  forfeited,  as  in  the 
case  of  escheated  land.  That  remedy,  we  have  seen,  is  ejectment, 
or  its  substitute  under  the  code.  There  has  been  no  conviction  and 
forfeiture  for  treason  in  this  state  since  the  revolution. 

In  an  action  brought  by  the  people  to  recover  lands  escheated  to 
the  people  or  otherwise  forfeited,  the  latter  must  prove  that  at  the 
time  of  the  commencement  of  the  action  they  had  a  valid  subsisting 
interest  in  the  premises  claimed,  or  right  to  recover  the  possession 
thereof  With  respect  to  making  out  the  proof  of  title  in  them- 
selves, the  people  have  an  advantage  over  an  individual.  By  right 
of  sovereignty,  they  are  deemed  the  owners  of  all  the  lands  within 
the  state,  except  such  as  have  been  granted  to  others,  or  have  been 
lost  by  lapse  of  time.  Hence  it  is  enough  for  the  people  to  prove 
in  the  first  instance,  that  the  premises  in  dispute  were  vacant  and 
unoccupied,  within  a  period  necessary  to  constitute  an  adverse  pos- 
session against  them,  and  that  the  defendants  subsequently  entered 
or  made  claim  to  them.  ( Wendell  v.  The  People,  8  Wend.  183. 
The  People  v.  Dennison,  17  id.  313.  The  People  v.  Van  Rensselaer, 
5  Selden,  319.) 


TITLE  BY  PRESCRIPTION.  347 

Section  II. 
Of  title  by  Prescription,  by  Adverse  Enjoyment,  and  Occupancy. 

1.  The  doctrine  of  prescription  seems  to  liave  been  introduced 
into  English  juirsprudence  from  the  Eoman  law.  It  is  founded  on 
this  presumption,  that  he  who  has  had  a  quiet  and  uninterrupted 
possession  of  any  thing,  for  a  long  period  of  years,  is  supposed  to 
have  a  just  right,  without  which  he  could  not  have  been  suffered  to 
continue  in  the  enjo^onent  of  it.  For  a  long  possession  may  be  con- 
sidered a  better  title  than  can  commonly  be  produced,  as  it  supposes 
an  acquiescence  of  all  other  claimants;  and  that  acquiescence  also 
supposes  some  reason  for  which  the  claim  was  forborne. 

By  the  common  law  a  prescription  can  only  be  made  to  incorpo- 
real hereditaments,  such  as  rents,  right  of  way  and  the  like.  It 
wiU  not  in  any  case  give  a  right  to  erect  a  building  on  another  s 
land  This  is  a  mark  of  title  and  exclusive  enjoyment,  which  can- 
not be  acquired  by  prescription.  Title  to  land  requires  the  higher 
evidence  of  corporeal  seisin  and  inheritance.  {Ferris  v.  Brown,  3 
Barh.  S.  G.  B.  109.     Cortelijou  v.  Van  Brundt,  2  John.  362.) 

Nor  ^dll  lapse  of  time  enable  a  party  to  prescribe  for  a  nuisance, 
thouo-h  a  temporary  occupation  of  part  of  a  street  or  highway  by 
perso°ns  engaged  in  building,  or  in  receiving  or  delivermg  goods 
fi-om  stores  or  warehouses,  or  the  like;  is  allowed  from  the  necessity 
of  the  case;  yet  a  systematic  and  continued  encroachment  upon  a 
street,  though  for  the  purpose  of  carrying  on  a  lawful  business,  is 
unjustifiable.     {The  Peoples.  Ounningham,  1  Den.  524.     3Iills  v. 

EaJl,  9  Wend.  315.) 

There  is  another  kind  of  prescription  established  by  statute  law, 
extending  to  corporeal  hereditaments,  by  which  an  uninterrupted 
possession  for  a  certain  number  of  years  will  give  the  possessor  a 
good- title,  by  taking  from  all  others  the  right  of  maintaining  any 
action  for  the  recovery  thereof. 

There  are,  therefore,  two  kinds  of  prescriptions  known  to  our 
law.  The  first,  a  prescription  to  incooyoreal  hereditaments  by  a 
usage  of  at  least  twenty  years,  which  period  our  courts,  in  analogy 
to  the  statute  of  limitations,  have  adopted  instead  of  the  immemo- 
rial usage  of  the  EngHsh  law.  This  is  a  positive  prescription,  and 
the  kind  which  we  are  now  considering. 

A  prescription  differs  from  custom  in  this,  that  a  custom  is  prop- 


348  TITLE  BY  PRESCRIPTION. 

erly  a  local  usage  not  annexed  to  the  person;  such  as  a  right  or 
privilege  which  several  persons  have  to  the  produce  of  the  lands  or 
water  of  another.  Thus  common  of  pasture  is  a  right  of  feeding 
the  beasts  of  one  person  on  the  lands  of  another;  common  of  esto- 
vers is  the  right  the  tenant  has  of  taking  necessary  wood  and  timber 
from  the  woods  of  the  lord  for  fuel,  fencing,  &c. ;  common  of  tur- 
bary and  piscary  are  in  like  manner  rights  which  tenants  have  to 
cut  turf  or  take  fish  in  the  grounds  or  waters  of  the  lord.  {Per 
Savage,  Oh.  J.  in  Van  Re7isselaer  v.  Raddiff,  10  Wend.  647.) 
Prescription,  on  the  other  hand,  is  always  annexed  to  a  particular 
person.     {Co.  Litt.  113  6.) 

This  kind  of  prescription  is  of  two  sorts;  a  j^ersonal  right,  or 
else  a  right  attached  to  the  ownership  of  a  particular  estate,  and 
only  exercised  by  those  who  are  seised  of  that  estate.  {Id.)  The 
first  is  termed  a  prescription  in  the  person;  t\iQ  second,  a  prescrip- 
tion in  a  que  estate.      {Cruise's  Dig.  title  Prescription.) 

This  last,  a  prescription  in  a  que  estate,  must  always  be  laid  in 
the  person  who  is  seised  of  the/ee  si7npl€.  A  tenant  for  life,  or 
years,  or  at  will,  cannot  prescribe  in  this  manner,  by  reason  of  the 
imbecility  of  iheir  estates.  The  reason  given  for  this  is  that  as 
prescription  is  always  beyond  time  of  memory,  it  would  be  absurd 
that  those  whose  estates  commenced  within  the  memory  of  man 
should  intend  to  prescribe  for  any  thing.  Therefore  tenant  for  life 
must  prescribe,  under  cover  of  the  tenant  in  fee  simple.   (6  Co.  60  a.) 

The  reason  for  this  distinction  does  not  exist  in  this  state,  since 
an  uninterrupted  and  adverse  and  exclusive  enjoyment  of  twenty 
years  affords  a  conclusive  presumption  of  a  grant,  or  a  right,  as  the 
case  may  be.  A  prescription  cannot  be  predicated  upon  a  user  of 
less  than  twenty  years;  and  as  it  supposes  a  grant  it  is  not  appli- 
cable to  a  case  where  there  can  be  no  grantee.  {Per  Gridley,  J.  in 
Munson  V.  Hungerford,  6  Barh.  265.) 

It  is  laid  down  in  the  English  books  that  a  prescription  by  im- 
memorial usage  can  in  general  only  be  of  things  which  may  be  cre- 
ated by  grant;  for  the  law  allows  prescription  only  to  supply  the 
loss  of  a  grant.  {Cruise's  Dig.  tit.  31,  ch.  1,  §  1.)  Hence  an  ease- 
ment which  is  a  seisin,  or  convenience  that  one  neighbor  hath  of 
another,  without  profit,  as  a  way  through  his  land,  a  sink,  or  such 
like,  may  be  claimed  by  prescription;  but  a  multitude  of  persona 
cannot  prescribe  for  an  easement,  though  they  may  plead  a  cus- 
tom.    {Id.) 


TITLE  BY  PRESCRIPTION.  349 

There  is  a  difference  between  a  prescription  and  a  dedication, 
though  some  of  the  principles  on  which  they  are  founded  are  com- 
mon to  both.  The  one  is  personal,  and  the  other  belongs  not  to 
one,  but  the  public  generally.  {8ee  Post  v.  Pearsall,  22  Weiid. 
425;  S.  G.  20  id.  Ill,  luhere  most  of  the  cases  are  examined.) 

While  a  prescription  by  immemorial  usage  can  only  be  of  things 
which  may  be  created  hy  grant,  a  prescrij)tion  in  a  que  estate  is  not 
predicable  of  things  that  lie  in  grant,  and  can  be  affirmed  only  of 
things  that  cannot  pass  without  deed,  or  by  descent  from  ancestors 
without  a  conveyance.     {Co  Litt.  121  a.) 

The  first  essential  requisite  to  form  a  prescription  is  the  length 
of  time  during  which  it  has  existed.  In  England  this  is  said  to  be 
from  time  whereof  the  memory  of  man  runneth  not  to  the  contrary, 
which  has  long  been  ascertained  to  commence  from  the  beginnins: 
of  the  reign  of  Kichard  1.  The  reason  given  for  fixing  that  period 
is  said  by  Littleton,  that  that  was  the  limitation  of  writs  of  right, 
the  highest  wnrit  in  its  nature.  {Litt.  §  170.)  That  reason  does 
not  exist  in  this  country,  which  was  not  settled  until  centuries  after 
that  period;  but  the  principle  on  which  the  doctrine  originally 
rested,  the  period  of  limitation  for  a  writ  of  right,  has  led  the  courts 
in  this  country  to  adopt  the  period  of  our  statute  of  limitations 
against  the  recovery  of  real  property  from  an  adverse  holder,  as  that 
which  will  authorize  the  presumption  of  a  grant.  In  this  state  it 
is  well  settled  that  a  prescription  cannot  be  predicated  upon  a  user 
of  less  than  twenty  years.  {Munson  v.  Eungerford,  supra.)  The 
presumption  of  a  grant  from  twenty  years'  uninterrupted  use,  has 
been  frequently  held  conclusive  of  a  right.  In  Stiles  v.  Hooker,  7 
Coioen,  266,)  it  was  applied  in  favor  of  the  owner  of  a  miU,  who 
had,  for  twenty  years  or  more,  used  the  water  of  a  stream  at  a  par- 
ticular height.  In  Corning  v.  Goidd,  (16  F/end.  531,)  it  was  held 
that  a  grant  of  a  right  of  way  might  be  presumed  from  a  continuous 
and  adverse  user  of  twenty  years.  {See  Hoyt  v.  Carter,  16 
Barb.  213.) 

With  regard  to  ancient  lights,  it  was  said  by  the  court  in  Par- 
Jcer  V.  Foote,  (19  Wend.  309,)  that  the  modern  English  doctrine  on 
that  subject  was  anomalous,  and  that  in  this  state  there  was  no 
absolute  legal  presumption  of  the  grant  of  such  an  easement  from 
the  time  of  their  enjoyment;  but  it  must  be  left  to  the  jury  to 
draw  the  presumption  or  not,  as  the  circumstances  may  in  their 
judgment  warrant. 


350  TITLE  BY  PRESCRIPTION. 

The  statute  of  limitations  for  the  recovery  of  real  property  differs 
in  the  different  states.  But  the  principle  on  which  a  prescription 
is  founded  in  this  country  is  generally  conceded  to  have  reference 
to  that  period.  Hence  in  some  a  longer  and  in  others  a  shorter 
period  than  twenty  years  is  adopted.  {Coolidge  v.  Learned, 
8  Pick.  503.  Melvin  v.  Whiting,  10  id.  295.  Mitcliell  v.  Walker, 
1  Ark.  266.     Ingraliam  v.  Hutchinson,  2  Conn.  Rep.  584.) 

The  second  essential  requisite  to  a  valid  prescription  is  that  it 
must  have  a  continued  and  peaceable  usage  and  enjoyment.  In 
Colvin  V.  Burnett,  (17  Wend.  568.)  the  question  arose  upon  plead- 
ings; and  the  learned  judge  who  delivered  the  opinion  of  the  court, 
adopting  the  language  of  Putnam,  J.  in  Sargeant  v.  Ballard,  (9 
Pick.  251,  255,)  says  the  essential  ingredients  of  a  prescription  are 
that  the  user  for  twenty  years  was  continuous,  uninterrupted  and 
adverse;  that  is,  under  a  claim  of  right,  with  the  acquiescence  and 
knowledge  of  the  owner.  And  in  another  and  later  case  they  say 
that  the  right  to  flow  the  lands  of  another,  founded  upon  an  exclu- 
sive and  uninterrupted  enjoyment  for  twenty  years,  cannot  he  ac- 
quired unless  the  enjoyment  he  adverse.  They,  however,  admit 
that  the  uninterrupted  possession  is  ^Wwa/acte  evidence  that  it  is 
adverse,  hut  such  conclusion  may  be  rebutted  by  proof  that  it  was 
commenced  and  continued  without  any  claim  of  right.  {Hart  v. 
Fo.se,  19  Wend.  365.     Gayetta  B.  Bethune,  14  3Iass.  Rep.  49.) 

The  third  ingredient  is  that  the  prescription  must  be  certain  and 
reasonable.  It  must  be  open,  peaceable,  continued,  and  unequivo- 
cal, and  be  adverse,  that  is,  of  a  nature  to  indicate  that  it  is  claimed 
as  a  right,  and  not  the  effect  of  mere  indulgence.     (Id.) 

As  a  prescription  must  have  a  peaceable  and  uninterrupted  en- 
jo}Tnent,  it  may  be  lost  by  neglecting  to  claim  or  exercise  it. 
Abandonment  is  a  simple  non-user,  and  to  operate  as  an  extin- 
guishment, it  must  have  been  continuous  for  twenty  years.  {Corn- 
ing V.  Gould,  16  Wend.  531.)  It  must  have  totally  ceased  for  the 
same  length  of  time  that  was  necessary  to  create  the  original  pre- 
sumption. 

A  temporary  relinquishment  of  the  right,  if  accompanied  with 
an  intention  to  resume  it  within  a  reasonable  time ;  and  when  there 
are  no  circumstances  intimating  the  suspension  to  be  temporary 
only,  a  bona  fide  purchaser  will  be  protected  in  the  enjoyment  of 
the  property  as  it  appeared  at  the  time  of  the  purchase.     {Id.) 


ADVERSE  ENJOYMENT.  351 

2.  Title  by  adverse  enjoyment  is  the  second  kind  of  prescription, 
and  owes  its  origin  to  the  statute  of  limitations.  It  differs  from  a 
prescription  in  this,  that  by  a  prescription  of  twenty  years  umn- 
terrupted  adverse  enjoyment,  a  right  to  an  incorporeal  hereditament 
is  acquired,  or  a  grant  thereof  conclusively  presumed;  whereas  in 
this  second  sort  of  prescription  no  positive  right  is  acquired,  but. 
only  the  remedy  of  the  former  possessor  in  taken  away,  for  the  re- 
covery of  a  corporeal  or  incorporeal  hereditament.  For  this  reason 
it  has  sometimes  been  called  a  negative  prescription.  It  is  more 
generally  applicable  to  corporeal  than  to  incorporeal  hereditaments. 

Though  the  statute  of  limitations  does  not  profess  to  take  an  es- 
tate from  one  man  and  give  it  to  another,  it  extinguishes  the  claim 
of  the  former  owner,  and  quiets  the  possession  of  the  actual  occu- 
pant who  proves  that  he  has  occupied  the  premises  under  a  color 
of  title  peaceably  and  quietly  for  the  period  prescribed  by  the  law. 
It  is  therefore  truly  spoken  of  as  a  source  of  title;  and  is  in  truth 
as  valid  and  effectual  as  a  grant  from  the  sovereign  power  of  the 
state. 

The  statute  of  limitations  in  this  state,  with  reference  to  real 
property,  was  revised  in  1801,  and  again  in  1830,  and  subsequently 
at  the  adoption  of  the  code  of  procedure.  (1  B.  L.  181.  2  R.  S. 
292.  Code  of  Procedure,  §  75  et  seq.)  The  act  of  1801  provided 
that  the  people  of  this  state  would  not  sue  any  person  for,  or  in  re- 
spect to,  any  real  property,  or  the  issues  or  jjrofits  thereof,  by  rea- 
son of  the  right  or  title  of  the  people  to  the  same,  unless  such  right 
or  title  should  have  accrued  within  forty  years  before  any  action  or 
other  proceeding  for  the  same  should  be  commenced,  or  unless  the 
people,  or  those  from  whom  they  claim,  should  have  received  the 
rents  and  profits  of  such  real  estate,  or  of  some  part  thereof,  within 
the  space  of  forty  years.  At  the  revision  in  1830,  this  limitation 
was  reduced  to  twenty  years,  and  so  continued  till  1848,  when  at 
the  adoption  of  the  code  of  procedure  it  was  restored  to  forty  years, 
where  it  has  ever  since  remained.  As  against  the  people,  the  de- 
fendant must  show  title  in  himself,  or  a  continued  possession  of 
forty  years,     (The  People  v.  Van  Rensselaer,  8  Barb.  189.) 

The  limitation  for  a  wi'it  of  right,  by  the  law  of  1801,  was  twen- 
ty-five years.  This  was  reduced  to  twenty  years  by  the  revised 
statutes  of  1830,  and  has  been  so  continued  in  the  code.  The  writ 
of  right  was  indeed  abolished,  but  the  limitation  of  twenty  years 
was  applied  to  the  substituted  remedy. 


352  ADVERSE  ENJOYMENT. 

The  existing  law  is  that  which  is  provided  by  the  code;  which 
has  also  adopted,  from  the  decisions  of  the  courts,  the  principles 
which  govern  in  cases  of  adverse  possession.     {Code,  §  78,  &c.) 

It  provides  that  no  action  for  the  recovery  of  real  property,  or  for 
the  recovery  of  the  possession  thereof,  shall  be  maintained,  unless 
it  appear  that  the  plaintiff  or  his  ancestor,  predecessor  or  grantor, 
was  seised  or  possessed  of  the  premises  in  question  within  twenty 
years  before  the  commencement  of  such  action.  This  provision 
covers  what  was  formerly  a  writ  of  right,  as  well  as  the  various  pos- 
sessory actions,  which  in  this  state  were  formerly  embraced  in  the 
action  of  ejectment.    They  are  now  all  placed  upon  the  same  footing. 

The  same  principle  is  extended  as  well  to  the  action  or  its  de- 
fense, when  founded  upon  the  title  to  real  property,  or  to  rents  or 
services  out  of  the  same;  and  neither  is  effectual  unless  it  appears 
in  the  one  case  that  the  persons  prosecuting  the  action,  and  in  the 
other  the  party  making  the  defense,  or  under  whose  title  the  action 
is  prosecuted  or  defended,  or  the  ancestor,  predecessor  or  grantor 
of  such  person,  was  seised  or  possessed  of  the  premises  in  question, 
within  twenty  years  before  the  commencement  of  the  act  in  respect 
to  which  such  action  is  prosecuted  or  defense  made.     {Code,  §  79.) 

The  statute  has  wisely  given  a  legislative  definition  of  the  effect 
of  an  entry,  by  declaring  that  it  shall  not  be  deemed  sufficient,  or 
valid  as  a  claim,  unless  an  action  be  commenced  thereupon  within 
one  year  after  the  making  of  such  entry,  and  within  twenty  years 
from  the  time  when  the  right  to  make  such  entry  descended  or 
accrued. 

The  person  establishing  a  legal  title  to  the  premises  is,  in  every 
action  for  the  recovery  thereof,  presumed  to  have  been  possessed 
thereof  within  the  time  required  by  law;  and  the  occupation  of 
such  premises  by  any  other  person  shall  be  deemed  to  have  been 
under  and  in  subordination  to  the  legal  title,  unless  it  appears  that 
such  premises  have  been  held  and  possessed  adversely  to  such  legal 
title  for  twenty  years  before  the  commencement  of  such  action. 
{Id.  §  81.) 

The  foregoing  provision  of  the  code  was  borrowed  from  the  revised 
statutes  of  1830,  and  was  supposed  to  express  the  result  of  the 
multifarious  decisions  of  the  courts,  as  to  the  presumption  that  ev- 
ery possession  was  under  the  legal  title.  {Jackson  v.  Sharp,  9 
John.  163.  Wickham  v.  Conklin,  8  id.  228.  Jackson  v.  Thomas^ 
16  id.  293.) 


ADVERSE  POSSESSION.  353 

The  doctrine  with  respect  to  adverse  possession  had  become  pretty 
well  settled  as  early  as  1830,  when  the  revised  statutes  took  effect. 
Some  of  the  rules  on  the  subject  were  supposed  to  be  subtle  and 
refined;  but  having  been  long  the  subject  of  judicial  exposition,  it 
was  supposed  by  the  legislature  that  they  could  be  stated  with  pre- 
cision and  clearness;  and  it  was  therefore  proposed,  in  the  recom- 
mendation of  the  re\dsers,  that  they  should  be  fixed  by  legislative 
enactment.  The  object  was,  1.  To  make  the  statute  of  limitations 
better  understood;  2.  To  give  to  the  rules  a  permanent  character, 
and  rescue  them  from  the  fluctuations  of  opinions;  and  3.  That 
the  community  at  large  might  have  the  means  of  knowing  the  most 
imj^ortant  laws  respecting  the  enjoyment  of  their  property.  {See 
Revisers'  notes  on  the  subject,  3  R.  S.  699,  2c?  ed.) 

The  statute  was  made  so  as  to  embrace  two  of  the  most  impor- 
tant classes  of  cases,  viz :  1st.  Where  the  entry  into  the  possession 
of  the  premises  was  under  a  claim  of  title,  exclusive  of  any  other 
•right,  founded  upon  a  written  instrument,  as,  being  a  conveyance 
of  the  premises  in  question,  or  upon  the  decree  or  judgment  of  a 
competent  court;  and  2d.  Where  there  has  been  an  actual  contin- 
ued occupation  of  premises  under  a  claim  of  title,  exclusive  of  any 
other  right,  but  not  founded  upon  a  wi'itten  instrument  or  a  judg- 
ment or  decree. 

The  legislature  intended  to  fix  the  rules  with  respect  to  these 
two  classes  of  cases  by  permanent  enactment,  and  therefore  adopted 
substantially  the  expositions  given  to  the  subject  by  the  courts. 
And  the  same  sections  were  retained  by  the  code  of  procedure,  un- 
altered, and  are  still  the  law  of  this  state.  They  obviously  super- 
sede the  necessity  of  introducing,  in  this  place,  the  adjudged  cases 
upon  which  they  are  founded. 

With  respect  to  the  first  class  of  cases,  to  wit,  where  the  entry 
was  under  a  written  instrument,  as  being  a  conveyance  of  the  prem- 
ises in  question,  or  upon  the  judgment  or  decree  of  a  competent 
court,  the  enactment  is,  that  where  there  has  been  a  continued  oc- 
cupation and  possession  of  the  premises  included  in  such  instru- 
ment, decree  or  judgment,  or  of  some  part  of  such  premises,  under 
such  claim,  for  twenty  years,  the  premises  so  included  shall  be 
deemed  to  have  been  held  adversely;  except  that  where  the  premises 
so  included  consist  of  a  tract  divided  into  lots,  the  possession  of 
one  lot  shall  not  be  deemed  a  possession  of  any  other  lot  of  the 
same  tract.     (2  B.  S.  294,  §  9.     Code  of  Procedure,  §  82.) 

Will.— 23 


354  ADVERSE  POSSESSION. 

This  provision  was  intended  to  exclude  the  doctrine  of  a  con- 
structive adverse  possession  as  applicable  to  large  tracts  of  land. 
That  doctrine  is  admissible  only  when  it  is  applied  to  a  lot  or  farm; 
in  which  latter  case  the  improvement  of  a  part  of  a  lot  or  farm  wiU 
give  a  valid  constructive  possession  of  the  residue,  although  not 
improved.  But  it  is  essential  to  support  such  constructive  posses- 
sion, that  the  deed  or  writing  should  include  within  its  boundaries, 
the  land  not  occupied  and  improved.  (Jackson  v.  Camp,  1  Coiv- 
en,  605.  Jackson  v.  Woodruff,  Id.  286.  Same  v.  Michards,  6  id. 
617.     Sharp  v,  Brandow,  15  Wend.  597.) 

The  foregoing  section  does  not  define  what  shall  be  deemed  to 
have  been  such  a  possession  or  occupation  of  land,  as  to  constitute 
an  adverse  possession,  by  a  person  claiming  a  title  founded  upon  a 
written  instrument,  or  a  judgment  or  decree.  To  supply  that  de- 
ficiency the  statute  declared  what  was  necessary  to  constitute  such 
occupancy  or  possession;  and  it  was  declared  to  be  1,  where  the 
land  so  claimed  has  been  usually  cultivated  or  improved;  2,  where 
it  has  been  protected  by  a  substantial  inclosure ;  3,  where,  although 
not  inclosed,  it  has  been  used  for  the  supply  of  fuel  or  fencing  tim- 
ber, for  the  purposes  of  husbandry,  or  the  ordinary  use  of  the  oc- 
cupant; 4,  where  a  known  farm  or  a  single  lot  has  been  partly  im- 
proved, the  portion  of  such  farm  or  lot  that  may  have  been  left  not 
cleared,  or  not  inclosed,  according  to  the  usual  course  and  custom 
of  the  adjoining  country,  shall  be  deemed  to  have  been  occupied 
for  the  same  length  of  time  as  the  part  improved  and  cultivated. 
(2  B.  S.  294,  §  10.     Code,  §  83.) 

The  laws  should  be  made  with  reference  to  the  actual  condition 
of  the  society  upon  which  they  are  to  operate.  This  is  not  the 
same  in  every  part  of  the  state.  In  some  counties  lands  have  not 
been  reclaimed  from  their  primeval  forests.  In  others,  farms  will 
be  found  in  every  stage  of  improvement;  some  just  emerging  from 
a  wild  state,  and  others  already  reduced  to  cultivation.  The  stat- 
ute is  broad  enough  for  every  case;  and  yet  there  will  often  be  oc- 
casions for  the  exercise  of  a  wise  discretion  in  courts  and  juries  in 
the  application  of  the  rules. 

With  respect  to  the  second  class  of  cases,  namely,  an  occupation 
or  possession  of  lands  under  a  claim  of  title  not  written,  or  hj  judg- 
ment or  decree,  a  like  policy  was  pursued  by  the  legislature  of  con- 
forming the  written  law  to  the  approved  judicial  decisions.  The 
supreme  court,  as  early  as  1812,  had  decided  in  Smith  v.  Burtisj 


ADVERSE  POSSESSION.    COLOR  OF  TITLE.  355 

(9  Jolin.  180)  tliat  a  possesion  for  ever  so  long  a  time,  stripped  of 
the  circumstances  that  it  was  accompanied  with  the  claim  of  the 
entire  title,  would  not  amount  to  an  adverse  possession,  barring 
those  who  had  the  real  and  legitimate  title.  It  was  not  required 
that  there  should  be  a  rightful  title.  The  fact  of  the  possession, 
and  the  quo  animo^  it  was  commenced  or  continued,  were  the  only- 
tests. 

To  carry  out  these  views,  the  statute  expressly  enacted  that 
where  it  shall  appear  that  there  has  been  an  actual  continuous  oc- 
cupation of  any  premises  under  a  claim  of  title,  exclusive  of  any 
other  right,  but  not  founded  upon  any  written  instrument,  or  any 
judgment  or  decree,  the  premises  so  actually  occupied,  and  no  oth- 
er, shall  be  deemed  to  be  held  adversely.  (2  R.  8.  294,  §  11. 
Code,  §  84.) 

The  actual  occupancy  is  thus  made  the  criterion,  when  the  right 
is  not  founded  upon  a  wi'itten  instrument,  or  judgment,  or  decree. 
What  shall  constitute  such  occupancy  as  to  amount  to  an  adverse 
possession,  is  there  declared  to  be  1,  where  the  land  has  been  pro- 
tected by  a  substantial  inclosure;  and  2,  where  it  has  been  usually 
cultivated  or  improved.  (2  R.  8. 294,  §  12.  Code,  §  85.)  This  is  only 
the  adoption  of  the  principle  which  had  long  been  held  by  the 
courts,  that  a  mere  possession  fence,  as  it  is  called,  made  by  felling 
trees  and  lapping  them  upon  one  another,  is  too  loose  and  equivo- 
cal, to  take  away  the  right  of  entry  from  the  rightful  owner.  There 
must,  say  the  court,  be  a  real  and  substantial  inclosure,  an  actual 
occupancy,  a  possessio  pedis,  which  is  definite,  positive  and  noto- 
rious, when  that  is  the  only  defense  interposed  to  countervail  a  le- 
gal right.  (Jackson  v.  8choonmaJcer,  2  John.  230.)  But  the  in- 
closure may  be  in  part  natural,  as  a  continued  ledge  of  rocks,  a 
mountain  or  a  navigable  river.  (Jackson  v.  Halstead,  5  Coioen, 
216.)  If  there  is  no  written  title,  judgment  or  decree,  but  the  de- 
fendant relies  solely  on  possession,  vni\\  an  assertion  of  title,  he 
can  retain  so  much  only  as  he  had  under  actual  improvement,  and 
within  a  substantial  inclosure.  (Jaclcson  v.  Warford,  7  Wen- 
dell, 62.) 

The  effect  of  the  statute  of  limitations  when  applied  to  civil  ac- 
tions, is  to  mature  a  wrong  into  a  right,  by  cutting  off  the  remedy. 
(Per  Coioen,  J.  in  Humbert  v.  Trinity  Church,  24  Wend.  604.) 
To  warrant  its  application  in  ejectment,  the  books  require  color  of 
title,  by  deed  or  other  documental  semblance  of  right  in  the  defend- 


356  ADVERSE  POSSESSION.    COLOR  OF  TITLE. 

ant,  only  when  the  defense  is  founded  on  a  constructive  adverse 
20ossession.  But  neither  a  deed  nor  any  equivalent  muniment  is 
necessary  where  the  possession  is  indicated  by  actual  occiq^ation, 
and  any  other  evidence  of  an  adverse  claim  exists.  An  oral  claim 
of  exclusive  title,  or  any  other  circumstances  by  which  the  absolute 
owner  of  land  is  distinguished  from  the  naked  possessor,  are  equally 
admissible,  and  may  be  equally  satisfactory.     {Id.) 

If  on  the  trial  the  defendant  shows  that  he  took  possession  claim- 
ing under  a  deed,  he  is  not  bound  to  produce  the  deed,  though 
called  for  by  the  plaintiff,  but  may  rely  on  his  adverse  possession. 
(Jackson  v.  Wheat,  18  John.  40.  Same  v.  Neivton,  Id.  355.  Brad- 
street  V.  Clarice,  12  Wend.  674.)  It  is  not  necessary  that  there 
should  be  a  rightful  title.  All  that  is  necessary  is  that  it  should  be 
a  possession  taken  and  held  in  good  faith,  under  claim  and  color  of 
title,  and  exclusive  of  any  other  right.  The  defense  of  adverse  pos- 
session assumes  that  the  defendant  has  not  a  valid  legal  paper  title; 
if  he  had,  he  need  not  rely  upon  the  length  of  his  possession.  The 
fact  of  the  possession  and  the  quo  animo  it  was  commenced  and 
continued,  are  the  only  tests.  He  need  not  even  produce  the  deed 
under  which  he  claims ;  and  if,  when  produced,  it  is  defective  as  a, 
deed,  as  for  want  of  a  seal  or  otherwise,  it  will  not  destroy  the  effect 
of  the  defendant's  possession.     (Bradstreet  v.  Clarke,  supra.') 

The  title  claimed  must  be  such  an  one  as  the  law  will  prima 
facie  consider  a  good  title.  {Jackson  v.  Frost,  1  Cowen,  346.)  If 
it  is  subser\aent  to  and  admits  the  existence  of  another  and  a  higher 
title,  the  possession  is  not  adverse  to  that  title,  the  possessor  must 
claim  the  entire  title.  {Jackson  v.  Johnson,  5  Coiven,  74.)  On  the 
foregoing  principles,  a  quit-claim  deed  given  by  a  mere  squatter, 
without  color  of  title,  in  consideration  of  a  discontinuance  of  an 
ejectment  against  him,  does  not  change  the  character  of  the  pos- 
session.    {Jackson  v.  Hill,  5  Wend.  532.) 

But  adverse  possession  cannot  be  founded  on  an  absolutely  void 
conveyance;  as  for  example,  a  deed  given  pending  a  suit  concern- 
ing the  land,  which  is  void  for  champerty.  {Jackson  v.  Andreivs, 
7  Wend.  152.)  Nor  upon  a  deed  founded  in  fraud;  nor  upon  a 
deed  executed  by  another  without  authority,  to  the  knowledge  of 
the  grantee.     {Livingston  v.  The  Peru  Iron  Co.  9  Wend.  511.) 

From  the  nature  of  the  estate  of  tenants  in  common  and  joint 
tenants,  each  has  a  right  to  the  possession;  and  therefore  the  pos- 
session of  one  will  not  be  treated  as  adverse  to  his  companions,  uu- 


ADVERSIS  BOSSESSION".  357 

less  there  has  been  an  ouster.  If  one  tenant  in  common  actually 
excludes  his  co-tenants  it  is  an  ouster,  and  his  possession  then  be- 
comes adverse.  (Eumhert  v.  Trinitij  Cliurch,  24  Wend.  587.  So 
the  grantee  of  one  tenant  in  common  of  the  whole  premises,  who 
enters  under  the  grant  and  claims  title  to  the  whole,  holds  adverse- 
ly to  the  other  tenants  in  common.  {Cla2n'>  v.  Bramagham,  9  Goiv- 
en,  530.  Town  v.  Needham,  3  Paige,  545.)  So  if  one  tenant  in 
common  claims  possession  of  the  whole,  under  a  warranty  deed 
from  a  stranger,  it  is  a  sufficient  ouster.     {Siglar  v.  Van  Riper,  10 

Wend.  414.) 

A  party  holding  adversely  may,  by  a  recognition  of  the  rightful 
title,  lose  the  benefit  of  his  adverse  holding.  If  while  in  possession 
he  offers  to  purchase  the  title  of  the  claimant,  it  is  a  circumstance 
which,  unexplained,  will  authorize  the  presumptioU  that  he  came 
into  possession  under  such  title.  (Jackson  v.  Cray,  12  John.  427. 
Jackson  v.  Britton,  4  Wend.  507.) 

But  this  rule  does  not  prevent  a  person  in  possession  from  quiet- 
ing his  title,  by  taking  a  quit-claim  or  any  other  deed  from  a  stran- 
ger, who  interposes  any  claim  to  the  land.     {Northrop  v.  Wright, 

7  Hill,  476.) 

The  relation  of  landlord  and  tenant  gave  occasion  for  some  con- 
flict of  opinion  with  respect  to  the  right  of  the  latter  to  set  up  an 
adverse  possession  against  the  former.  It  was  held  at  an  early  day 
that  a  person  who  entered  into  possession  under  another,  and  ac- 
knowledged his  title,  could  not  set  up  an  outstanding  title  in  a 
third  person.  (Jackson  v.  Stewart,  6  John.  34.  Same  v.  De  Walts, 
7  id.  157.)  Nor,  after  recognizing  the  lessor  as  his  landlord,  could 
he  afterwards  dispute  his  title.  (Jackson  v.  Voshurgh,  7  id.  186. 
Same  v.  Reynolds,  1  Caines,  444.  Same  v.  Whitford,  2  id.  215.) 
Indeed,  the  doctrine  was  carried  out  to  that  extent,  that  when  the 
relation  of  landlord  and  tenant  was  once  established,  it  attached  to 
all  who  might  succeed  to  the  possession,  through  or  under  the  ten- 
ant, either  immediately  or  remotely;  and  this,  though  the  purchaser 
from  the  lessee  took  an  absolute  grant,  not  knowing  of  the  tenancy. 
(Jackson  v.  Harsen,  7  Coiven,  323.  Same  v.  Scissam,  3  John. 
499.  Jackson  v.  Davis,  5  Coioen,  123.)  It  was  justly  thought  by 
the  legislature  that  there  should  be  some  limitation  on  the  forbear- 
ance of  the  landlord,  and  that  some  reasonable  period  should  be 
fixed  beyond  which,  if  he  forbore  to  assert  his  right,  the  possession 
of  the  occupant  might  be  deemed  adverse.     This  was  accordingly 


358  ADVERSE  POSSESSION— EFFECT  OF. 

done  by  enacting  that  whenever  the  relation  of  landlord  and  tenant 
should  exist  between  any  persons,  the  possession  of  the  tenant 
should  be  deemed  the  possession  of  the  landlord,  until  the  expira- 
tion of  twenty  years  from  the  termination  of  the  tenancy;  or  where  . 
there  has  been  no  wi'itten  lease,  until  the  expiration  of  twenty  years 
from  the  time  of  the  last  payment  of  rent;  notwithstanding  that 
such  tenant  may  have  acquired  another  title,  or  may  have  claimed 
to  hold  adversely  to  his  landlord.  But  such  presumptions  are  not 
to  be  made  after  those  limited  periods,  (2  R,  S.  294,  §  13.  Code, 
§  86.)  This  provision  abrogates  a  technical  rule,  in  favor  of  an  ac- 
tual possession,  in  good  faith,  of  twenty  years. 

It  was  a  principle  of  the  common  law  that  where  a  man  was  seised 
hj  any  means  whatsoever  of  the  inheritance  of  a  corporeal  heredit- 
ament and  died,,  whereby  the  same  descended  to  his  heirs,  however 
feeble  his  right,  the  entry  of  any  other  person  who  claimed  title  to 
the  freehold  was  taken  away,  and  he  could  not  recover  possession 
against  the  heir  by  entry,  but  was  driven  to  his  action  to  gain  a 
legal  seisin  of  the  estate.  (3  Bl.  Com.  176.)  Such  was  the  rule 
whether  the  seisin  was  by  right  or  by  wrong.  {Doe  v.  Thompson, 
5  Coiven,  371.)  This  rule  was  founded  purely  upon  feudal  reasons, 
and  has  been  abrogated  by  the  revised  statutes.  (2  R.  S.  295, 
§  15.  Code,  §  87.)  The  remedy  of  the  party  claiming  title  is  the 
same  as  in  other  cases  where  the  possession  is  unlawfully  withheld. 

As  the  effect  of  the  statute  of  limitations  is  to  mature  a  wrong 
into  a  right  by  cutting  off  the  remedy,  after  the  assertion  of  it  has 
been  forborne  for  a  specified  period,  it  is  obvious  upon  principles  of 
natural  justice,  that  the  mere  delay  to  bring  an  action  against  the 
party  wi'ongfuUy  in  possession,  should  not  mature  into  a  title  in 
favor  of  the  wrongdoer,  if  the  rightful  owner  labored  under  a  dis- 
al)ility.  What  shall  amount  to  such  disability  has  been  uniformly 
expressed  in  our  statutes  on  this  subject.  The  existing  statute  of 
this  state  provides  that  if  a  person  entitled  to  commence  any  action 
for  the  recovery  of  real  property,  or  to  make  an  entry,  or  defense 
founded  on  the  title  to  real  property,  or  to  rents  or  services  out  of 
the  same,  be,  at  the  time  such  title  shall  first  descend  or  accrue^ 
either  1,  within  the  age  of  twenty-one  years;  or,  2,  insane;  or, 
3,  imprisoned  on  a  criminal  charge,  or  on  execution  upon  conviction 
of  a  criminal  offense  for  a  term  less  than  for  life;  or,  4,  a  married 
woman,  the  time  during  which  such  disability  shall  continue  shall 


LIMITATIONS.    DISABILITIES.  359 

not  be  deemed  any  portion  of  the  time  limited  for  the  commence- 
ment of  such  action,  or  the  making  of  such  entry  or  defense;  but 
such  action  may  be  commenced,  or  entry  or  defense  made,  after  the 
period  of  twenty  years,  and  within  ten  years  after  the  disabiHty 
shall  cease,  or  after  the  death  of  the  p-erson  entitled,  who  shall  die 
under  such  disability;  but  such  action  shall  not  be  commenced,  or 
entry  or  defense  made,  after  that  period.  (2  R.  S.  295,  §  16,  as 
amended  in  1849  and  1851.  Code,  §  88.)  This  provision  was 
taken  from  the  former  law,  with  some  slight  modification.  (1  B.  L. 
185,  186.)  In  the  former  law,  the  proviso  was  in  favor  of  a  party 
hnjjrisojied,  without  stating  any  particular  circumstances,  whereas 
the  present  law  limits  the  imprisonment  to  such  as  arises  on  a  crim- 
inal charge,  or  in  execution  upon  conviction  of  a  criminal  offense 
for  a  term  less  than  for  life.  A  party  imprisoned  for  debt  only, 
is  not  within  the  exception,  nor  within  the  reason  on  which  it  is 
founded.  A  party  imprisoned  for  life  is  civilly  dead,  and  his  case 
is  elsewhere  provided  for. 

There  are  various  provisions  in  the  statute  of  limitations  \Ndth 
respect  to  the  commencement  of  actions  for  the  recovery  of  debts, 
demands  or  damages,  which  do  not  fall  within  the  scope  of  this 
treatise. 

The  statute  of  limitations  with  respect  to  real  property,  does 
not  begin  to  run  from  the  time  the  tenant  came  into  possession, 
but  from  the  time  of  his  holding  adversely.  (Jackso7i  v.  Parker, 
3  John.  Oh.  124.)  If,  therefore,  a  party  enters  without  claim  or 
color  of  title,  and  afterwards  obtains  a  good  or  colorable  title,  the 
adverse  possession  will  commence  from  that  period.  {Same  v. 
Thompson,  16  John.  293.     Same  v.  Neivton,  18  id.  355.) 

Nor  does  the  law  allow  successive  disabilities  of  different  persons 
taking  the  same  estate  by  devise  or  descent  from  each  other.  (Car- 
penter V.  Schermerhorn,  2  Bai^b.  Ch.  314.)  Hence,  when  an  ad- 
verse possession  begins  to  run  in  the  lifetime  of  the  ancestor,  it 
continues  to  run,,  though  the  land  descends  to  a  person  under  a 
disability.  (Jackson  v.  Moore,  13  John.  513.  Same  v.  Robins, 
.  15  id.  169.     Fleming  v.  Grisioold,  3  Hill,  85.) 

These  principles  were  well  illustrated  in  Carpenter  v.  Schermer- 
horn, (supra.)  Though  that  case  arose  under  the  former  statute, 
the  principle  is  applicable  to  the  existing  code,  which  in  this  respect 
is  the  snme.  It  was  there  said,  that  where  a  female  having  an  in- 
terest in  real  estate,  is  under  a  disability  in  her  lifetime,  by  reason 


360  DISABILITIES. 

of  coverture,  which  prevented  her  bringing  an  action  of  ejectment, 
her  heirs  must  bring  their  suit  within  ten  years  after  her  death. 
And  where  one  of  those  heirs  was  also  a  feme  covert  at  the  death  of 
her  mother,  it  was  held  that  that  circumstance  would  not  have  the 
effect  to  extend  the  period  within  which  the  ejectment  must  be 
brought. 

The  principle  of  not  allowing  successive  disabilities  in  different 
persons  was  borrowed  from  the  English  decisions  under  a  like  pro- 
vision of  their  statute  of  limitations.  {Doe  v,  Jesson,  6  Uast,  80. 
2  Frest  Abst  341.) 

The  right  of  entrj'-  of  a  reversioner  or  remainderman,  is  not  affect- 
ed by  the  statute,  if  a  particular  estate  existed  when  the  right 
accrued.  If  the  husband  be  tenant  by  the  curtesy  initiate,  and  the 
wife  be  disseised  and  die  without  entry,  the  statute  does  not  run 
against  the  heirs  until  the  husband's  death.  The  heirs,  in  such 
case,  have  ten  years  after  the  death  of  the  tenant  by  the  curtesy  to 
enter.  (Jackson  v.  Johnson,  5  Goiven,  14:.  Same  v.  Sclioonma- 
ker,  4  John.  390.  Moore  v.  Jackson,  4  Wend.  5S.  Carpenter  v. 
Scherraerhorn,  stipra.) 

If  the  owner  be  a  feme  covert  when  the  adverse  possession  com- 
mences, she  is  entitled  to  ten  years  after  her  disability  ceases,  and 
to  twenty  years  in  all,  to  bring  her  action.  The  time  of  her  cover- 
ture during  the  adverse  possession  is  not  to  be  deducted  from  the 
twenty  years.  (  Wilson  v,  Betts,  4  Denio,  201.  Clapp  v.  Bram- 
aghan,  9  Coioen,  530.) 

The  doctrine  of  adverse  possession  is  essential  to  be  known  by  the 
conveyancer.  While  land  is  held  adversely,  the  person  out  of  pos- 
session and  claiming  the  title,  cannot  convey  his  right  to  a  third 
person,  though  he  may  release  to  the  party  in  the  actual  enjoyment 
of  the  land.  His  grant  to  a  stranger  is  void,  and  passes  no  title  to 
the  grantee.  {BurhansY.  Burhans,  2  Barb.  Ch.  398.  Jackson  v. 
Demont,  9  John.  55.  Same  v.  Oltz,  8  Wend.  440.  Coe  v.  Irvine, 
6  Hill,  634.)  The  latter,  therefore,  cannot  maintain  an  action  upon 
it;  and  it  is  immaterial  in  a  civil  action,  whether  knowledge  of 
this  adverse  possession  was  brought  home  to  him  or  not. 

But  though  the  conveyance  of  land  held  adversely  to  the  grantor 
is  inoperative  and  void,  against  the  person  thus  holding  adversely, 
and  those  who  afterwards  come  in  under  him,  it  is  valid  as  to  all 
the  rest  ^of  the  world,  and  passes  the  title  from  the  grantor  to  the 
grantee.     If,  therefore,  the  adverse  holder  voluntarily  abandons  the 


POLICY  OF  THE  STATUTE  OF  LIMITATIONS.  361 

possession,  the  grantor  may  enter  and  enjoy  the  land;  or  if  after 
such  abandonment  a  stranger  enters,  the  grantor  may  bring  eject- 
ment and  oust  him.  {Livingston  v.  Froseus,  2  Hill,  526.)  The 
statute  (1  B.  S.  739,  §  147)  declaring  a  deed  of  land  held  adversely 
to  the  grantor  to  be  void,  was  for  the  benefit  and  protection  of  the 
claimant.  If  the  person  thus  holding  adversely,  acknowledges  the' 
title  of  the  claimant,  his  possession  as  to  the  latter  ceases  to  be  ad- 
verse. Much  more,  if  when  prosecuted  at  law  by  the  claimant,  he 
confesses  the  action,  there  is  no  longer  any  obstacle  to  a  convey- 
ance by  the  latter,  of  the  laud  the  title  to  which  is  so  confessed. 
(Kenada  v.  Gardner,  4  Sill,  469;  S.  C.  3  Barh.  589.) 

But  the  statutes  against  selling  pretended  titles  in  lands  held 
adversely,  (1  B.  S.  739;  2  id.  691,  §  5,)  have  no  application  to  judi- 
cial sales.  Such  sales  do  not  come  within  the  mischief  which  the 
statutes  were  made  to  prevent.  {Ttdtlc  v.  Hills,  6  Wend.  213,  224. 
Tfuax  V.  Thorn,  2  Barh.  156.) 

In  bringing  this  branch  of  the  subject  to  a  close,  it  is  not  deemed 
inappropriate  to  add  a  few  remarks  on  the  policy  of  the  statute  of 
limitations.  There  was  a  time  when  those  statutes  were  viewed 
with  disfavor,  and  when  slio-ht  circumstances  were  considered  suf- 
ficient  to  obviate  their  effect.  But  that  day  has  gone  by  in  this 
state,  and  they  are  now  justly  treated  as  statutes  of  repose,  intend- 
ed to  quiet  the  possession  of  the  actual  occupant,  and  to  repress 
the  spirit  of  litigation.  They  are  founded  on  the  probability  that 
after  a  long  lapse  of  time  the  party  may  have  lost  the  evidence  ne- 
cessary for  his  defense,  or  that  those  who  could  prove  the  lavrful- 
ness  of  their  entry  have  departed  this  life.  {See  remarks  of  Spen- 
cer, Ch.  J.  in  Sands  v.  Gelston,  15  John.  519,  and  in  Murray  v. 
Coster,  20  id.  586,  587.)  They  are  founded  too,  in  public  policy — 
as  was  said  by  Lord  Eldon  in  Cholmondely  v.  Clinton,  (4  Bli.  B. 
Ft.  1,  jj.  117,) — it  is  generally  immaterial  to  the  public  at  large 
whether  A.  or  B.  is  the  owner  of  a  particular  estate;  but  it  is  highly 
important  that  the  person  who  is  in  possession  should  be  the  owner, 
for  he  is  dealt  with  by  all  men  as  the  owner,  and  therefore  it  is  a 
consideration  of  public  policy.  The  statutes  of  limitation,  says 
his  lordship,  are  not  simply  for  the  purpose  of  quieting  rights  be- 
tween individuals,  but  they  are  founded  upon  public  policy,  that 
the  person  who  is  in  possession,  having  the  credit  attributed  to  that 
possession,  should  not  be  lightly  disturbed. 

The  remarks  of  Lord  Redesdale,  in  the  same  case,  are  to  the  like 


362  TITLE  BY  OCCUPANCY. 

effect;  showing  that  courts  of  equity  act  upon  the  same  principle, 
in  cases  not  within  the  letter  of  the  act,  and  which  remarks  are  ap- 
proved by  our  supreme  court,  in  Huinhert  v.  Trinity  Cliurch,  (24 
Wend.  607.) 

3.  Of  title  hy  occui^ancy,  very  little  need  be  said,  as  it  has  ceased 
to  exist  in  this  state. 

At  common  law,  this  right  to  real  property  extended  only  to  a 
single  case,  namely,  where  a  man  was  tenant  pur  auter  vie,  or  had 
an  estate  granted  to  himself  only,  without  naming  his  heirs,  for 
the  life  of  another  man,  and  died  during  the  life  of  cestui  que  vie, 
or  him  by  whose  life  it  w^as  liolden;  in  this  case,  he  that  could  first 
enter  on  the  land  might  lawfully  retain  the  possession  so  long  as 
cestui  que  vie  held  by  right  of  occupancy.  (Co.  Litt.  41  &.)  It  was 
not  apphcable  to  things  lying  in  grant,  or  incorporeal  heredita- 
ments, for  of  them  there  could  be  no  occupant.  It  was  an  incident 
of  real  estate  only,  and  it  is  the  only  instance,  says  Blackstone,  in 
which  a  title  to  real  estate  could  be  acquired  by  occupancy. 

But  this  estate,  even  in  England,  is  reduced  to  almost  nothing 
by  force  of  two  statutes,  namely,  that  of  29  Charles  2,  ch.  3,  and 
14  George  2,  ch.  10.  By  the  first  of  which,  an  estate  ^wr  auter  vie 
is  devisable  by  will,  and  if  not  devised,  was  chargeable  in  the  hands 
of  the  heir,  if  he  came  to  it  by  special  occupancy,  as  assets  by  de- 
scent; and  by  the  other,  that  the  surplus,  after  paying  debts, 
should  be  distributed  in  a  course  of  administration. 

In  this  state,  by  the  laws  of  1813,  it  was  enacted  that  estates  j9wr 
auter  vie  were  devisable  by  will,  duly  executed,  and  if  not  so  de- 
vised, should  go  to  the  executors  or  administrators  of  the  party  who 
had  the  estate  to  be  applied  and  distributed  as  part  of  the  personal 
estate.  (1  i^.  i.  365,  §  4.)  The  revised  statutes  contain  the  same 
provision  so  framed  as  to  exclude  the  title  by  occupancy  altogether. 
They  enact  that  an  estate  during  the  life  of  a  third  person,  wheth- 
er limited  to  the  heirs  or  otherwise,  shall  be  deemed  a  freehold  only 
during  the  life  of  the  grantee  or  devisee,  but  after  his  death  it  shall 
be  deemed  a  chattel  real.  (1  B.  S.  722,  §  6.)  And  in  another 
statute,  the  executors  or  administrators  of  the  tenant  for  life  are 
required  to  insert  in  the  inventory  of  the  testator  or  intestate,  as 
part  of  the  assets,  all  estates  held  by  him  for  the  life  of  another. 
(2  R.  S.  82,  §  6.) 

Tenant  for  his  own  life,  or  for  that  of  another  person,  is  a  free- 
holder during  his  life,  and  while  conveyance  by  fine  was  a  common 


TITLE  BY  ELECTION.  363 

assuraDce  in  this  state,  lie  miglit  levy  a  fine  wliicli  would  Und  the 
remainderman  and  other  strangers.  Such  a  fine,  it  was  held,  devest- 
ed and  displaced  the  reversion  or  remainder,  leaving  only  a  right  of 
entry  in  the  reversioner  or  remainderman.  (Boseboom  v.  Van  Vech- 
ten,  5  J>t'w.  424.) 

But  this  mode  of  assurance  is  now  abohshed  m  this  state,  f^in.  ^. 
343,  §  24.)  And  it  is  now  declared  that  no  greater  estate  or  inter- 
est shall  he  construed  to  pass  by  any  grant  or  conveyance,  thereaf- 
ter executed,  than  the  grantor  possessed  at  the  delivery  of  the  deed, 
or  could  then  lawfully  convey,  except  that  every  grant  should  he 
conclusive  against  the  grantor  and  his  heirs  claiming  from  him  by 
descent.     (1  B.  S.  739,  §  143.) 

Section  III. 

Of  Title  hy  Election  and  by  Estoppel. 

The  doctrine  of  election  and  estoppel  sometimes  becomes  material 
in  considering  the  title  to  real  property.  The  first  more  frequently 
arises  in  equity  than  at  law,  and  is  founded  upon  the  principle  that 
where  a  person  claims  under  an  instrument  he  must  give  efi"ect  to 
that  instrument  in  full.  He  cannot  put  himself  in  a  capacity  to 
take  under  an  instrument  without  performing  the  conditions  of  it, 
expressed  or  implied.  Election,  says  the  chancellor  in  Broome  v. 
Monck,  (10  Ves.  609,)  is  when  the  testator  gives  what  does  not 
belong  to  him,  but  does  belong  to  another  person,  and  gives  that 
person  some  estate  of  his  own;  by  virtue  of  which  gift  a  condition 
is  implied,  either  that  he  shall  part  with  his  own  estate,  or  shall 
not  take  the  bounty. 

The  case  oi Smith  v.  Wycloff,  (11  Paige,  49,  57,)  is  an  illustration 
of  this  same  doctrine.  In  that  case  the  chancellor  held  that  the 
devisee  who  takes  a  farm  under  the  provisions  of  a  will  must  give 
efi'ect  to  it.  As  the  testator  had  specifically  charged  certain  notes 
upon  the  farm,  it  was  held  that  the  devisee  of  the  same  farm  could 
not  raise  the  question  whether  or  not  the  notes  were  given  for  debts 
which  the  devisee  was  bound  in  justice  and  equity  to  pay.  For, 
said  the  chancellor,  if  he  claims  under  the  will,  he  must  take  it 
subject  to  the  payment  of  such  debts  as  the  testator  thinks  proper 
to  charge  him  with,  as  a  condition  of  such  devise. 


364  TITLE  BY  ESTOPPEL. 

Estop2:tel  is  a  mode  oi preserving,  rather  than  of  acquiring,  prop- 
erty, inasmuch  as  a  person  is  concluded  by  his  own  act  from  dis- 
puting the  title  of  another.  Estoppel  is  defined  to  be  a  conclusion, 
because  a  man's  own  act  or  acceptance  stops  or  closes  up  his  mouth 
to  allege  or  plead  the  truth.     (Co.  Lift.  352  a.) 

There  is  an  analogy  between  the  doctrine  of  election  and  the 
doctrine  of  estoppel,  and  some  of  the  cases  are  used  indiscriminately, 
to  support  or  illustrate  both.  The  doctrine  of  estoppel  is  more  fre- 
quently applied  to  the  law  of  pleading  than  to  that  of  estates.  But 
it  is  also  connected  w^ith  the  title  to  real  property.  We  shall  there- 
fore briefly  notice  it  in  this  place. 

Estoppels  are  of  three  kinds,  namely,  by  matter  of  record,  by 
matter  in  writing,  and  by  matter  in  pais. 

1.  By  matter  of  record,  as  by  letters  patent,  verdict  and  judg- 
ment in  a  former  suit.  The  general  principle  of  law  is  that  a  de- 
cision of  a  court  of  competent  jurisdiction  is  conclusive  and  binding 
on  all  courts  of  concurrent  jurisdiction.  (^Si^njjson  v.  Hart,  1  John. 
Ch.  91.)  Or  as  it  is  elsewhere  expressed,  the  judgment  of  a  court 
of  concurrent  jurisdiction,  directly  upon  the  point,  is  as  a  plea  in 
bar,  or  evidence  conclusive  between  the  same  parties,  upon  the  same 
matter  directly  in  question  in  another  court.  (Gardner  v.  Buck- 
hee,  3  Cowen,  120.  Burt  v.  Sternberg,  4  id.  559.)  It  is  final  not 
only  as  to  the  matter  actually  determined,  but  as  to  every  other 
matter  which  the  parties  might  have  litigated  and  have  had  de- 
cided. But  to  be  a  good  bar,  it  must  have  been  between  the  same 
parties,  and  for  the  same  subject  matter;  and  contingent  remainder- 
men in  esse  are  not  bound  by  the  decree,  if  they  were  not  parties 
to  the  suit,  though  the  owners  of  the  particular  estate  were  parties. 
(Bruen  v.  Eone,  2  Barb.  586.      Vail  v.  Vail,  7  id.  226.) 

To  make  a  record  in  a  former  suit  conclusive  evidence  on  any 
point,  it  should  appear  from  the  record  that  such  point  was  in  is- 
sue. Other  evidence  cannot  be  received  to  show  that  a  particular 
matter  not  in  issue  on  the  record  came  in  question,  or  was  taken 
into  consideration  by  the  jury.  This  rule,  it  will  be  seen  hereafter, 
admits  of  qualification,  in  the  case  of  general  pleadings.  Indeed, 
the  verdict  and  judgment  are  not  evidence,  unless  it  be  on  the  same 
point  and  between  the  same  parties.  {Manny  v.  Harris,  2  John. 
24.     Maylee  v.  Avery,  18  id.  352.) 

But  the  same  point  may  be  said  to  arise  collaterally  as  well  as 
directly.     In  Kingsland  v.  Spalding,  (3  Barh.  Ch.  343,)  the  chan- 


ESTOPPELS  BY  WRITING.  BS5 

cellor  said  that  the  rule  on  this  subject  is,  that  a  decree,  sentence 
or  judgment,  of  a  court  of  competent  jurisdiction,  is  conclusive  up- 
on the  parties,  in  any  future  litigation  of  the  same  question  between 
the  parties  to  such  decree,  sentence  or  judgment,  or  those  claiming 
under  them;  whether  the  question  arises  directly  or  collaterally  in 
such  subsequent  litigation;  provided  the  question  is  brought  before 
the  court  in  the  proper  form.  When,  says  the  chancellor,  the 
former  decision  of  the  same  matter  can  be  set  up  in  pleading  as  an 
estoppel,  the  party  who  wishes  to  avail  himself  of  it  must  plead  it 
in  bar  of  the  future  litigation  of  the  same  matter.  But  in  those 
cases  where  the  forms  of  proceeding  do  not  allow  of  special  pleading, 
it  may  be  given  in  evidence;  and  is  conclusive  upon  the  parties, 
the  court  and  jury.  (  Wright  v.  Butler,  6  Wend.  284.  Young  y. 
Black,  7  Cranch,  565.) 

It  seems,  however,  to  be  well  settled,  that  the  former  judgment 
is  not  conclusive  except  upon  the  matters  directly  in  question  in 
the  former  suit;  but  is  not  evidence  of  matter  incidentally  cogniza- 
ble, or  to  be  inferred  only  by  argument  or  construction  from  the 
judgment.  In  Wood  v.  Jackson,  (8  Wend.  9,)  the  chancellor  said 
that  the  former  verdict,  in  order  to  operate  as  an  estoppel,  must  be 
pleaded;  and  that  when  it  is  not  pleaded,  but  merely  relied  on  as 
evidence,  it  is  not  conclusive,  but  only  prima  facie  e\adence,  which 
may  be  repelled  by  the  party  against  whom  it  is  urged.  In  the 
same  case  it  seems  to  have  been  settled,  that  if  it  does  not  appear 
from  the  record  that  the  verdict  and  judgment  in  the  former  suit 
were  directly  upon  the  point  or  matters  which  are  attempted  to  be 
again  litigated  in  the  second  action,  the  fact  may  be  shown  aliunde, 
provided  the  pleadings  in  the  first  suit  were  such  as  to  justify  the 
evidence  of  those  matters,  and  that  it  also  appeared  that  v/hen 
approved,  the  verdict  or  judgment  must  necessarily  have  involved 
their  consideration  and  determination  by  the  jury.  {Lawrence  v. 
Sunt,  10  Wend.  84,  per  Nelson,  J.) 

The  reversal  of  a  judgment  destroys  its  efficacy  as  an  estoppel  as 
between  the  parties  to  it.  (  Wood  v.  Jackson,  supra.)  But  an  es- 
toppel by  record  cannot  be  countervailed  by  argument,  however 
conclusive.     (Mersereau  v.  Pearsall,  5  Smith,  108.) 

2.  Estoppels  by  matter  in  writing  arise  under  wills  in  some  cases, 
but  more  frequently  under  deeds.  1.  Under  walls  it  has  been  held 
that  an  heir  cannot  take  under  and  in  hostility  to  the  will.  If  he 
claim  under  the  wiU,  he  must  give  eiSfect  to  it  so  far  as  in  his  power. 


366  ESTOPPELS  BY  DEED. 

{Eawley  v.  James,  16  Wend.  61.)  A  party  claiming  thiough 
deeds  which  recite  a  will  is  estopped  from  denying  its  validity  and 
genuineness.     (JacJcson  v.  Thompson,  6  Cowen,  178.) 

So,  it  was  held  in  Jackson  v.  Ireland,  (3  Wend.  99,)  that  by 
accepting  a  grant  confirmatory  of  a  will  devising  him  a  remaieder, 
the  grantee  was  estopped  from  setting  up  any  title  inconsistent  with 
the  will.  And  in  another  case,  it  was  held  that  a  recital  in  a  will 
that  a  testator  had  executed  a  deed  to  the  defendant,  was  evidence 
against  the  testator's  heirs  of  a  perfect  execution  of  such  deed,  and 
of  title  in  the  defendant.     {Smith  v.  Wait,  4  Barh.  28.) 

But  this  doctrine  of  estoppel  is  confined  within  some  reasonable 
bounds.  A  party  is  not  estopped  by  his  admission  or  assertion  of 
a  conclusion  of  law  upon  undisputed  facts.  Thus,  where  there  had 
been  a  partition  of  real  estate  among  devisees  by  action,  and  occu- 
pying under  it,  claiming  as  owners  in  fee,  it  was  held  that  no  es- 
toppel was  created,  as  against  one  of  the  devisees  in  favor  of  his 
judgment  creditor,  who  purchased  the  share  of  such  devisee,  at  a 
sale  under  his  own  execution,  so  as  to  prevent  such  devisee  from 
showing,  in  order  to  defeat  such  purchaser's  action  of  ejectment, 
that  by  the  devise  the  legal  estate  was  vested  in  the  executors  and 
not  in  the  devisees,  at  the  time  of  the  docketing  of  such  judgment, 
and,  therefore,  that  such  judgment  was  not  a  lien  on  the  share  of 
such  de\dsee,  and  the  purchaser  acquired  no  right  or  title  by  his 
purchase  at  said  sale.     (Breivster  v.  Striker,  2  Comst.  19.) 

2.  Estoppels  under  deeds  are  more  frequent  than  under  wills. 
The  general  rule  appears  to  be  well  settled,  that  recitals  in  a  deed 
estop  parties  and  privies.  (Jackson  v.  Parkhurst,  9  Wend.  209. 
Chautauque  Co.  Bank  v.  Bisle^j,  4  Denio,  480.)  The  grantor  is  es- 
topped by  a  recital  in  his  deed.  (Bennison  v.  Ely,  1  Barh.  610.) 
But  a  mere  general  recital  cannot  control  the  plain  words  of  the 
granting  part  of  a  deed.  Thus,  where  a  deed  of  assignment  by  a 
debtor  in  trust  for  his  creditors,  recited  that  the  debtor  was  desir- 
ous to  convey  his  property,  to  secure  three  of  his  creditors  named, 
in  full,  and  the  residue  for  the  benefit  of  his  other  creditors;  and  in 
the  body  of  the  deed,  the  assignment  was  expressed  to  be  in  trust, 
to  pay  and  satisfy  those  three  creditors,  and  three  others  named, 
and  the  surplus  to  be  divided  among  his  other  creditors;  it  was 
held  that  the  three  creditors  named  in  the  recital  were  only  entitled 
to  be  paid  ratably  with  the  other  three  creditors,  in  proportion  to 
their  demands,  out  of  the  proceeds  of  the  property  assigned.     {Eim- 


ESTOPPEL  BY  DEED.  367 

tington  v.  Havens,  5  John.  Cli.  23.)  The  general  recital  here  was 
of  an  intention  which  was  inconsistent  with  the  plain  language  of 
the  instrument,  and  could  not  control  the  latter. 

But  a  recital  in  a  deed  of  a  particular  fact  may  estop  the  party. 
(Id.)  Thus  a  recital  in  a  patent  of  a  prior  patent,  being  a  recital 
of  a  particular  fact  directly  affirmed,  estops  one  claiming  under  it 
from  denying  the  existence  of  such  prior  patent.  (Jackson  v.  Wil- 
son, 9  John.  92.)  So  also,  the  recital  of  a  lease  in  a  deed  of  release 
is  conclusive  upon  parties  in  privity  of  estate.  (Carver  v.  Jack- 
son, 4  Peters,  1.  This  comes  within  the  general  nature  of  estoppel 
as  laid  down  by  Lord  Coke.     (Ob.  Litt.  352  5.) 

There  was  a  time  for  many  years  when  it  was  held  in  this  state 
that  the  grantee  of  the  husband  could  not  deny  the  seisin  of  the 
latter  so  as  to  defeat  the  claim  of  dower  interposed  by  his  widow 
in  an  action  against  her  husband's  grantee.  (Hitchcock  v.  Har- 
rington, 6  John.  290.  Same  v.  Carpenter,  9  id.  344.  Collins  v. 
Torry,  7  id.  278,  282.  Davis  v.  Darrow,  12  Wend.  %5.)  The 
soundness  of  these  decisions  was  strongly  questioned  by  Co  wen,  J. 
in  Sherwood  v.  Vandenburgh,  (2  Hill,  308,)  and  by  Bronson,  J.  in 
Osterhout  v.  Shoemaker,  (3  id.  518,)  and  it  was  shown  pretty  clearly 
that  the  doctrine  of  estoppel  had  been  misapplied  in  that  and  other 
kindred  cases.  It  was  shown  that  there  was  no  mutuahty  between 
the  grantee  of  the  husband  and  the  widow  of  the  latter,  that  should 
estop  the  former  from  denying  the  seisin  of  the  husband  of  such  an 
estate  as  to  entitle  his  widow  to  be  endowed.  But  the  supreme  court 
felt  themselves  bound  by  the  prior  adjudications,  and  not  at  liberty 
to  depart  from  them.  At  length  the  question  came  before  the  court 
of  appeals  in  1848,  in  the  case  of  Sparrow  v.  Kingsman,  (1  Comst. 
242,)  when  the  whole  subject  was  fully  and  carefully  considered  by 
the  whole  court,  and  the  doctrine  of  those  cases  was  repudiated. 
In  that  case,  it  is  true,  the  grantee  held  by  quit-claim  deed  from 
the  husband,  and  it  was  adjudged  that  he  was  not  estopped  by  the 
grant  from  showing  in  an  action  of  dower  by  the  widow,  that  the 
grantor  had  not  such  an  estate  in  the  land  as  to  entitle  his  widow 
to  dower.  The  fact  that  the  grantee  held  by  quit-claim  deed  from 
the  husband,  does  not  seem  to  be  important.  For  if  he  held  under 
a  warranty  deed,  he  is  under  no  obligation  to  surrender  the  land  to 
the  grantor  or  the  widow.  He  owes  no  faith  or  allegiance  to  the 
grantor,  and  he  does  him  no  wrong  when  he  treats  him  as  an  utter 
stranger  to  the  title. 


368  ESTOPPEL  IN  PAIS. 

As  between  landlord  and  tenant  the  general  principle  is  that  the 
■latter  cannot  controvert  the  title  of  the  former,  under  whom  he 
holds,  and  which  he  has  recognized.  {Incjraham  v.  Baldwin,  12 
Barb.  9;  S.  C.  affirmed  on  ajjjoeal,  5  Seld.  45.)  But  this  estoppel 
is  not  without  its  limitation.  After  the  expiration  of  the  lease, 
the  lessee  is  no  longer  estopped  by  it  to  assert  any  right  which  he 
may  have,  though  it  be  of  such  a  character  that  he  could  not  do  so 
while  the  relation  of  landlord  and  tenant  continued.  {Child  v. 
Chap2:)el,  5  Seld.  246.     Jackson  v.  Roivland,  6  Wend.  607.) 

3.  JEstoppels  in  pais.  An  admission  by  the  defendant  intended 
to  influence  the  conduct  of  the  man  with  whom  he  is  dealing,  and 
.actually  leading  him  into  a  line  of  conduct  which  must  be  prejudi- 
cial to  his  interest,  unless  the  defendant  be  cut  off  from  the  power 
of  retraction,  is  the  very  de:finition  of  an  estoppeU'w^^ats.  (Per 
Cowen,  J.  in  Dezell  v.  Odell,  3  Hill,  215.)  But  a  man  can  be  es- 
topped from  denying  only  what  he  has  once  admitted.  {Despard 
V.  Wolhridge,  1  Smith,  377,  per  Selden,  J.) 

An  estoppel  in  pais  is  to  be  resorted  to  solely  as  a  measure  to 
prevent  injustice — always  as  a  shield  but  never  as  a  sword.  (Pierre- 
pant  V.  Bar7iard,  5  Ba7'b.  364.) 

Estoppels  in  pais  are  not  pleaded,  but  are  in  general  given  in  evi- 
dence, and  will  pji-ima  facie  operate  as  effectually  to  estop  the  party 
under  the  direction  of  the  court.  (  Welland  Canal  v.  Hathaway, 
8  Wend.  480.  Reed  v.  Pratt,  2  Hill,  64.  People  v.  Bristol  and 
Bensselaer  Turnpike  Co.  23  V/end.  222.) 

This  species  of  estoppel  is  sometimes  connected  with  the  title  to 
real  property.  If  a  person  having  a  conveyance  of  land,  looks  on  and 
suffers  another  to  purchase  and  expend  money  on  the  land  without 
making  known  his  claim,  he  will  not  be  permitted  afterwards  to 
assert  his  legal  title  against  an  innocent  purchaser.  (Wendell  v. 
Van  Bensselaer,  1  Joh7i.  Ch.  344.  Town  v.  Needham,  3  Paige^ 
545.)  So,  if  having  the  legal  title,  he  acquiesces  in  the  sale  of  the 
land  by  another,  claiming  or  having  color  of  title  to  it,  he  is  estop- 
ped from  afterwards  asserting  his  title  against  the  purchaser;  espe- 
cially if  he  has  advised  and  encouraged  the  parties  to  the  sale  to 
deal  with  each  other.     (Storrs  v.  Baker,  6  John.  Ch.  166.) 

The  abrogation  of  the  doctrine  which  formerly  prevailed  with 
respect  to  remedies,  preserving  a  distinction  between  such  as  are  to 
be  asserted  at  law  and  such  as  can  be  enforced  only  in  equity,  and 
blending  the  whole  in  one  form  of  proceeding  by  the  same  court, 


TITLE  BY  ALIENATION.  '  369 

necessarily  leads  to  a  modification  of  some  of  the  doctrines  which, 
we  find  in  the  cases  decided  prior  to  the  constitution  of  1846. 
What  was  said  by  the  learned  judge  in  Levick  v.  Sears,  (1  Hill, 
17,)  that  a  person  who  stands  by,  and  not  only  sees  another  buy, 
but  advises  him  to  do  so,  without  disclosing  the  title  which  he  af- 
terwards sets  up,  is  not  estopped  from  asserting  such  title  at  law, 
cannot  be  upheld  at  the  present  day.  If  equity  would  not  have 
permitted  him  formerly,  under  such  circumstances,  to  assert  his  le- 
gal title,  as  it  clearly  would  not,  the  same  defense  can  now  be  inter- 
posed in  a  court  having  jurisdiction  in  law  and  equity,  and  admin- 
istering, it  may  be,  both  remedies  together. 

Enough  has  been  said  to  illustrate  the  principles  applicable  to 
this  class  of  cases.  It  remains  to  be  added  that  every  estoppel 
ought  to  be  reciprocal,  that  is,  to  bind  both  parties.  It  is  for  this 
reason  that  a  stranger  can  take  no  advantage  of  estoppels,  and  is 
not  bound  by  them.  Estoppels  bind  only  the  parties  to  them,  and 
privies.  Of  these  there  are  three  kinds :  privies  in  blood,  as  the 
heir;  privies  in  estate,  as  the  feoffee,  lessee,  &c.;  and  privies  in 
law,  as  the  lord  by  escheat;  tenant  by  the  curtesy,  tenant  in  dow- 
er, &c.,  who  come  under  act  of  law,  or  in  the  post.  (Co.  Litt.  352  h. 
Lansing  v,  Montgomery,  2  John.  382.) 

Again,  every  estoppel,  because  it  concludes  a  man  to  allege  the 
truth,  must  be  certain  to  every  intent,  and  not  be  taken  by  argu- 
ment or  inference.     {Co.  Litt.  352  h.) 

No  instrument  in  writing  not  under  seal  can  be  pleaded  as  an 
estoppel.  The  form  of  pleading  an  estoppel,  is  to  rely  on  the  deed 
as  an  estoppel,  and  pray  judgment  that  the  party  be  estopped,  or 
not  admitted  to  deny  the  facts  which  the  deed  purports,  without 
demanding  judgment,  si  actio,  &c.     {Davis  v.  Tyler,  18  John.  492.) 

Section  IV. 
Of  Title  by  Alienation. 

The  last  mode  of  acquiring  and  losing  property,  which  we  shall 
notice,  is  alienation.  This  is  the  most  usual  mode  of  exercising 
dominion  over  it;  and  it  comprises  every  method  whereby  estates 
are  voluntarily  resigned  by  one  person,  and  accepted  by  another. 
It  embraces,  also,  such  transfers  of  property  as  may  be  made  by 
order  of  the  appropriate  tribunal^  or  under  judgment  and  execu- 
tion, against  the  owner. 

Will.— 24 


370  ALIENATION. 

In  tliis  state,  especially  since  the  abolition  of  entails,  there  has 
never  been  any  restriction  upon  the  power  of  alienation.  The  own- 
er, ha\ang  the  Jus  disponendi,  as  incident  of  his  dominion,  has  been 
permitted  to  transfer  that  ownership  to  others,  at  his  pleasure. 

The  statute  of  quia  emptores,  18  Edw.  1,  which  established  in 
England  the  free  right  of  alienation  by  the  sub-vassal  without  the 
consent  of  his  lord,  was  brought  by  our  ancestors  to  the  colony  of 
New  York,  and  became  a  part  of  its  law  and  of  the  law  of  the  state, 
independent  of  the  statute  of  tenures  enacted  in  1787,  which  we 
have  already  noticed.  (  Van  Rensselaer  v.  Hays,  19  N.  Y.  R.  68.) 
The  owner,  on  parting  with  the  fee,  and  retaining  no  reversion  or 
possibility  of  reversio7i  therein,  could  not  at  any  time  annex  any 
condition  to  his  conveyance,  that  would  prevent  his  alienee  from 
the  disposition  of  the  property.  It  was  only  where  he  retained  some 
reversion  in  himself  that  he  could  annex  a  condition  in  restraint  of 
alienation.     (Be  Peyster  v.  llicJiael,  2  Seld.  467.) 

It  does  not  fall  within  the  scope  of  this  treatise  to  give  a  histor- 
ical sketch  of  the  law  of  alienation,  as  it  has  existed  in  England  at 
various  times,  or  as  it  exists  in  that  country  at  this  time. 

In  a  former  chapter  (Part  1,  cJi.  1,  §  11,)  we  treated,  to  a  cer- 
tain extent,  of  the  persons  capable  of  holding  and  conveying  land. 
It  may  be  added,  that  in  general,  all  persons  capable  of  holding 
real  estate,  may  freely  alienate  the  same,  unless  he  is  under  some 
disability;  such  as  idiocy,  lunacy,  infancy,  or  coverture.  With  re- 
sjDCct  to  persons  under  disability  at  common  law,  to  deal  with  their 
estates,  we  shall  see,  in  its  proper  place,  that  vdse  and  provident 
provisions  are  made  by  the  statutes  of  the  state,  by  which  the  real 
jDroperty  of  such  persons  may  be  sold  or  incumbered. 

The  only  restriction  which  exists  against  the  sale  and  purchase 
of  real  property  is  our  statute,  which  declares  void  every  grant  of 
land,  if,  at  the  time  of  the  delivery  thereof,  such  lands  shall  be  in 
the  actual  possession  of  a  person  claiming  under  a  title  adverse  to 
that  of  the  grantor.  (1  R.  S.  739,  §  147.)  But  this  provision 
does  not  prevent  the  person  having  a  just  title  to  lands,  of  which 
there  shall  be  an  adverse  possession,  from  executing  a  mortgage  on 
such  lands.  And  such  mortgage,  if  duly  recorded,  binds  the  lands 
from  the  time  the  possession  thereof  shaU  be  obtained,  by  the  mort- 
gagor or  his  representatives.  The  mortgage  has  preference  over 
any  judgment  or  other  instrument,  subsequent  to  the  recording 
thereof;  and  if  there  are  several  mortgages,  they  have  preference 


ALIENATION  OP  LAND  HELD  ADVERSELY.  37X 

severally  according  to  tli»  time  of  recording  the  same  respectively. 
{Id.  §  148.) 

In  addition  to  the  provision  avoiding  the  conveyance  of  lands 
held  adversely,  the  statute  has  made  it  a  misdemeanor,  punishable 
by  fine  and  imprisonment,  for  any  officer,  judicial  or  ministerial,  or 
other  person,  to  take  a  conveyance  of  any  lands  or  tenements,  or  of 
any  interest  or  estate  therein,  from  any  person  not  being  in  posses- 
sion thereof,  while  such  lands  or  tenements  shall  be  the  subject  of 
controversy  by  suit  in  any  court,  knowing  the  pendency  of  such  suit, 
and  that  the  grantor  was  not  in  possession  of  such  lands  and  tene- 
ments. (2  B.  S.  691,  §  5.)  This  section,  it  has  been  held,  does 
not  apply  where  the  person  in  possession  does  not  hold  adversely  to 
the  grantor;  and,  therefore,  it  is  not  forbidden  to  take  a  conveyance 
from  a  party  in  possession  of  lands,  although  they  be  the  subject  of 
controversy  by  suit  in  court.     (  Wehh  v.  Bindon,  21  Wend.  98.) 

The  subsequent  section  of  the  same  statute  goes  further,  and  for- 
bids the  buying  or  selling,  or  in  any  manner  procuring,  or  making 
or  taking  any  promise  or  covenant  to  convey  any  pretended  right 
or  title  to  any  lands  or  tenements,  unless  the  grantor  thereof,  or  the 
person  making  such  promise  or  covenant,  shall  have  been  in  pos- 
session, or  he,  and  those  by  whom  he  claims,  shall  have  been  in 
possession  of  the  same,  or  of  the  reversion  or  remainder  thereof,  or 
have  taken  the  rents  and  profits  thereof  for  the  space  of  one  year 
before  such  grant,  conveyance,  sale,  promise  or  covenant  made; 
and  it  makes  the  violation  thereof  a  misdemeanor.  But  the  two 
last  sections  do  not  apply  to  any  mortgage  executed  by  a  person  not 
in  possession,  allowed  to  be  given  by  the  statute  before  cited,  nor 
to  any  conveyance  of  lands  and  tenements  to  any  person  in  the  law- 
ful possession  thereof.  {Pepper  v.  Haiglit,  20  Barb.  429)  Main- 
tenance is  no  longer  an  ofiiense  here,  except  as  to  buying  and  selling 
pretended  titles,  and  falsely  suing  and  maintaining  suits.  {Small 
V.  Mott,  22  Wend.  403,  affirming  previous  case,  20  id.  212.)  The 
party  in  possession  may  quiet  his  title  by  purchasing  in  any  out- 
standing claims. 

But  these  statutes  against  selling  pretended  titles,  or  lands  held 
adversely,  have  no  application  to  judicial  sales  nor  to  decrees.  {Tut- 
ile  V.  Jackson,  6  Wend.  213.  Truax  v.  Thome,  2  Barb.  156. 
Varich  v.  Jackson,  2  Wend.  166,  affirming  7  Cowen,  238.) 

With  regard  to  the  kind  of  conveyances,  which  are  recognized  by 
the  law,  it  may  be  remarked  that  some  are  made  by  the  parties 


372  ALIENATION  BY  DEED. 

themselves,  and  take  effect  in  their  lifetime;  others  are  made 
through  the  intervention  of  the  court,  or  of  some  public  officer  act- 
ing by  its  direction;  and  others  not  to  take  effect  until  after  the 
death  of  the  party  making  them,  which  is  the  case  of  devises  by  a 
last  will  and  testament. 

It  is  more  convenient  to  treat,  in  subsequent  successive  chapters, 
of  these  three  kinds  of  common  assurance. 


CHAPTER  V. 

OF  THE  ALIENATION  OF   REAL    ESTATE    BY  THE  VOLUNTARY   ACT  OF 
THE  PARTIES   INTER  VIVOS. 

Section  I. 
Of  Alienation  by  Deed. 

A  deed,  as  defined  by  the  elementary  writers,  is  a  writing  or  in- 
strument, written  on  paper  or  parchment,  sealed  and  delivered,  to 
prove  and  testify  the  agreement  of  the  parties  whose  deed  it  is,  to 
the  things  contained  therein.  (Shep.  Touch.  50.)  Coke  says  it  is 
an  instrument  consisting  of  three  things,  viz :  writing,  sealing  and 
delivery,  comprehending  a  bargain  or  contract  between  party  and 
party,  man  or  woman.  (Co.  Litt.  171  b.)  And  Blackstone  more 
briefly  defines  it,  as  a  writing  sealed  and  delivered  by  the  parties. 

It  is  said  to  be  called  a  deed,  in  latin  factum,  because  it  is  the 
most  solemn  and  authentic  act  that  a  man  can  perform,  with  rela- 
tion to  the  disposal  of  his  property.  We  have  seen,  in  a  previous 
chapter,  that  a  man  is  estopped  by  his  deed,  and  not  permitted  to 
aver  and  prove  any  thing  to  the  contrary.  Deeds  at  common  law 
were  of  two  kinds,  1,  deed  poll,  which  is  executed  only  by  the 
grantor,  and  2,  deeds  indented.  The  latter  are  often  called  inden- 
tures. An  indenture  is  an  agreement  between  two  or  more  persons, 
whereof  each  party  has  usually  a  part.  That  part  which  is  exe- 
cuted by  the  grantor  is  usually  called  the  original,  and  the  rest  are 
counterparts.  With  us,  most  frequently,  all  the  parties  execute 
every  part,  which  renders  them  all  originals.  The  practice  which 
formerly  prevailed  here,  was  to  cut  the  paper  or  parchment  on 
which  an  indenture  was  written  in  an  undulating  line.  This,  in 
the  time  of  Lord  Coke,  was  deemed  indispensable  to  an  indenture. 


DEED.    GRANT.    BARGAIN  AND  SALE.  373 

(Co.  Litt.  229  a.)  A  deed  jjoU  was  shaved  even  across  the  top. 
But  these  formalities  are  obsolete,  and  have  long  sinc6  ceased  to 
be  deemed  of  any  importance. 

The  New  York  revised  statutes  abolished  the  mode  of  conveying 
lands  by  feoifment  with  livery  of  seisin  ;  (1  R.  S.  738,  §  136  ;)  and 
all  fines  and  common  recoveries.  (2  id.  343,  §  24.)  They  doubt- 
less intended  to  substitute  a  grant  for  the  former  modes  of  assur- 
ance. And  hence  they  enacted  that  every  grant  in  fee  of  a  freehold 
estate  shall  be  subscribed  and  sealed  by  the  person  from  whom  the 
estate  or  interest  conveyed  is  intended  to  pass,  or  his  lawful  agent; 
if  not  duly  acknowledged  previous  to  its  delivery,  according  to  the 
provisions  of  the  revised  statutes,  its  execution  and  delivery  must 
be  attested  by  at  least  one  witness;  or  if  not  so  attested,  it  shall 
not  take  eifect  as  against  a  purchaser  or  incumbrancer  until  so  ac- 
knowledged. (1  id.  738,  §  137.)  It  is,  however,  well  settled  by 
the  courts,  that  whether  acknowledged  or  attested  by  a  subscribing 
witness  or  not,  it  is  valid  between  the  parties,  and  takes  eifect,  as 
to  prior  incumbrancers,  at  the  time  of  its  execution.  ( Wood  v. 
-  Chapin,  3  Kern.  509.  Voorhees  v.  Preshyterian  Church  of  Am- 
sterdam, 17  Barb.  108,  per  Hand,  J.) 

At  common  law,  a  grant  was  the  name  of  a  conveyance  of  incor- 
poreal hereditaments.  They  were  said  to  lie  in  grant,  as  lands  and 
tenements  were  said  to  lie  in  livery.  The  legislature  adopted  the 
name  grant,  and  applied  it  to  the  instrument  intended  for  the  con- 
veyance of  a  fee,  or  a  freehold  estate;  and  the  act  declares  that  it 
shall  take  effect  so  as  to  vest  the  estate  or  interest  intended  to  be 
conveyed,  only  from  its  delivery ;  and  all  the  rules  of  law  in  force, 
at  the  adoption  of  the  revision,  (1830,)  in  respect  to  the  delivery 
of  deeds,  were  declared  to  be  applicable  to  grants  thereafter  to  be 
executed.     (1  E.  S.  738,  §  138.) 

Prior  to  1788,  the  most  usual  mode  of  the  conveyance  of  land  in 
this  state,  was  by  lease  and  release.  On  the  declaration,  in  that 
year,  by  the  act  for  the  amendment  of  the  law,  and  the  better  ad- 
vancement of  justice,  that  from  and  after  the  first  day  of  May, 
1788,  none  of  the  statutes  of  England  or  of  Great  Britain  should 
operate  or  be  considered  as  law  of  this  state,  (2  Greenl.  116,  §  37,) 
that  form  of  conveyance  immediately  fell  into  disuse,  and  the  con- 
veyance by  bargain  and  sale  took  its  place,  and  has  ever  since  been 
the  most  frequent  mode  of  alienation  amongst  us,  and  was  the  one 
principally  in  use  at  the  time  the  statutes  were  revised,  in  1830. 


374  LEASE  AND  RELEASE. 

The  conveyance  by  lease  and  release  was,  however,  occasionally  em- 
ployed. And  hence,  the  statute  provided  that  deeds  of  bargain 
and  sale,  and  of  lease  and  release,  might  continue  to  be  used,  and 
be  deemed  grants,  and  subject  to  all  the  provisions  in  the  statute 
concerning  grants.  The  statute  also  declared  that  no  covenants 
shall  be  implied  in  any  conveyance  of  real  estate,  whether  such  con- 
veyance contains  covenants  or  not,  and  that  lineal  and  collateral 
warranties,  with  all  their  incidents,  should  be  abolished.  The  stat- 
ute contains  suitable  provision  for  subjecting  heirs  and  devisees  to 
a  liability  upon  the  covenants  and  agreements  of  their  ancestor  or 
devisor  to  the  extent  of  the  lands  descended  and  devised,  which  will 
be  noticed  in  their  proper  place.     (1  R.  S.  739,  §§  141,  142.) 

Although  the  statute  evidently  gave  a  preference  to  a  grant  as 
the  mode  of  passing  the  title  to  the  fee  and  freehold,  so  that  there 
need  be  but  one  form  of  conveyance,  and  that  applicable  to  both 
corporeal  and  incorporeal  hereditaments,  it  did  not  abrogate  any 
other  mode  of  conveyance  known  to  the  law  before,  except  i\iQ  feoff- 
ment, and  conveyances  by  fine  and  recovery.  It  expressly,  as  be- 
fore observed,  retained  the  bargain  and  sale,  and  lease  and  release; 
and  by  necessary  consequence,  left  all  other  forms  of  alienation  as 
they  were  before.  Hence  deeds  of  surrender,  assignment,  confirm- 
ation, exchange,  &c.  may  still  be  used,  if  desired  by  the  parties.  It 
would  seem,  however,  that  a  grant  would  be  equally  efiective,  and 
supersede  the  necessity  of  any  other  form.  No  greater  estate  can 
be  made  to  pass  by  it,  than  the  grantor  possessed  at  the  time  and 
could  lawfully  convey;  and  it  is  conclusive  against  him  and  his 
heirs  claiming  under  him  by  descent.  It  is  also  conclusive  against 
subsequent  purchasers  from  the  grantor  or  from  his  heirs  claiming 
as  such,  except  a  subsequent  purchaser  in  good  faith  and  for  a 
valuable  consideration,  who  shall  acquire  a  superior  title  by  a  con- 
veyance that  shall  have  been  first  recorded.  (1  B.  S.  739,  §§  143, 
144.) 

Our  examination  of  the  law  in  relation  to  conveyances  of  real  es- 
tate is  not  much  abridged  by  the  revised  statutes.  The  doctrine  in 
relation  to  the  circumstances  necessary  to  constitute  a  valid  deed 
is  the  same  which  formerly  prevailed.  The  conveyance  itself, 
whether  it  be  in  form  a  grant,  under  our  statute,  or  a  bargain  and 
sale,  is  still  denominated,  in  coramon  parlance,  a  deed;  and  it 
will  so  continue  to  be  called  for  ages  to  come.  Yery  little,  if  any 
thing,  has  been  gained  by  the  change  of  name  of  the  conveyance; 


ARTICLES  OF  AGREEMENT.  375 

or  by  the  substitution  of  an  instrument,  originally  designed  for  the 
transfer  of  incorporeal  interests,  as  a  conveyance  of  corporeal  here- 
ditaments. Hence  it  is  j)roper,  in  the  further  consideration  of  this 
subject,  to  inquire  into  the  circumstances  necessary  to  the  valid  ex- 
ecution of  deeds.  In  this  sense,  a  grant  is  a  deed,  and  requires  the 
like  formalities  for  its  validity. 

AU  deeds,  whether  deriving  their  effect  from  the  common  law,  or 
from  the  statute  of  uses,  do  immediately  upon  their  execution  by 
the  grantor  devest  the  estate  out  of  him,  and  put  it  in  the  party  to 
whom  the  conveyance  is  made,  though  in  his  absence,  and  without 
his  knowledge,  till  some  disagreement  to  such  estate  appears. 
(1  R  S.  738,  §  138.  Cruise's  Dig.  tit.  32,  ch.  1,  §  25.  Cunning- 
ham V.  Freeborn,  11  Wend.  240.  Jackson  v.  Bodle,  20  John. 
184,  187.)  This  doctrine  is  founded  upon  the  principle  that  the 
assent  of  the  party  who  takes  may  be  implied;  1st,  from  the  bene- 
ficial nature  of  the  instrument;  2d,  from  the  incongruity  that  would 
arise  from  a  perfect  execution  on  the  part  of  the  grantor,  which 
canno'  be  if  the  estate  still  remains  in  him;  and  3d,  unless  it  so 
vests,  "-.here  would  be  an  uncertainty  as  to  where  the  freehold  was 
vested.  The  New  York  statute,  as  explained  in  Cunningham  v. 
Freelorn,  (supra,)  seems  to  take  this  view  of  the  subject.  If  the 
conveyance  casts  a  burden  on  the  grantee  which  he  desires  not  to 
assume,  there  can  be  no  doubt  that  he  can  decline  to  accept.  There 
can  bt  no  valid  delivery  without  an  acceptance,  though  the  pre- 
sumpion  is  in  favor  of  the  latter  when  the  first  is  proved.  (Jack- 
son V.  Phipps,  12  John.  418,  422.) 

The  oractice  is  quite  common  of  entering  into  articles  of  agree- 
ment, }reparatory  to  the  execution  of  a  formal  deed,  where  the 
one  pary  has  agreed  to  purchase,  and  the  other  to  sell,  any  real 
estate.  This  article  contains  a  memorandum  of  the  agreement,  in 
which  tie  mutual  stipulations  of  the  parties  are  set  forth  with  more 
or  less  ftrmality.  Such  articles  contain  a  trust  which  courts  of 
equity  wU  enforce  by  a  specific  execution  of  the  agreement.  It  is, 
therefore  important  that  they  be  drawn  with  care,  and  contain, 
with  reajonable  certainty,  the  agreement  of  the  parties.  Under 
the  New  York  revised  statutes  a  contract  for  the  sale  of  lands  is 
void,  unLss  the  contract,  or  some  note  or  memorandum  thereof, 
expressing  the  consideration,  be  in  writing,  and  subscribed  by  the 
party  by  vhom  the  sale  is  to  be  made,  or  by  his  agent  lawfully  au^ 
thorized.    And  where  the  contract  has  not  been  signed,  either  by 


376  ESSENTIALS  OF  A  DEED. 

the  vendor  or  his  agent,  it  is  not  binding  upon  tlie  vendee,  although 
he  has  subscribed  the  same.  The  authority  of  the  agent  is  not  re- 
quired to  be  in  writing  by  the  statute  of  frauds.  If  lawfully  au- 
thorized by  parol,  he  can  bind  his  principal  by  a  valid  signing  of 
the  executory  contract.  (2  R.  S.  134,  §  8,  ef  seq.  McWIiorter  v. 
McMahan,  10  Paige,  386.  Toivnsend  v.  Hubbard,  4  Hill,  351.) 
The  statute  does  not  require  an  executory  agreement  for  the  con- 
veyance of  land  at  a  future  day,  to  be  under  the  seal  of  any  of  the 
parties.     It  is  good  and  obligatory,  whether  it  be  under  seal  or  not. 

Section  II. 
0/  the  requirements  essential  to  a  Heed. 

Our  remarks  under  this  section  are  applicable  to  grants,  and  to 
all  other  instruments  in  writing  and  under  seal,  which  fall  within 
the  appropriate  definition  of  a  deed. 

From  the  definition  of  a  deed,  given  in  the  preceding  sertion, 
and  from  a  reference  to  the  revised  statutes,  on  the  subject  of  alien- 
ation by  deed,  it  is  obvious,  that  the  following  circumstances  are 
essential  to  a  deed :  1.  Proper  parties  and  subject  matter.  2.  A 
good  and  sufficient  consideration.  3.  Writing  on  paper  or  parch- 
ment. 4,  Words  sufficient  to  express  the  agreement,  legallf  and 
orderly  set  forth.  5.  Eeading,  if  desired.  6.  Sealing  and  siping. 
7.  Delivery.  8.  Attestation  by  witnesses.  9.  Acknowledgiig,  or 
proving.  10.  Recording  in  the  proper  county,  and  in  the  proper 
book. 

1.  The  parties  to  a  deed  may  be  either  natural  persons,  ♦r  arti- 
ficial, as  a  corporation.  With  respect  to  the  first,  as  a  geneial  rule, 
it  may  be  laid  down  that  all  persons  who  have  attained  the  age  of 
twenty-one  years,  of  sound  mind  and  understanding,  and  ^re  not 
under  any  legal  disability,  may  convey  to  others  whatever  nterest 
they  have  in  real  estate.  Though  such  person  be  blind,  deaf  or 
dumb,  he  can  convey  his  land  by  deed.  Those  infirmities  do  not 
prevent  a  party  from  making  a  will.  (  Willard  on  Execuors,  69, 
70.)  And  on  the  same  principle  they  will  not  disable  tie  owner 
from  conveying  his  estate  inter  vivos.  Though  born  leaf  and 
dumb,  and  having  continued  so  from  his  nativity,  he  is  sill  capa- 
ble of  executing  a  deed,  if  of  sufficient  capacity.  {Broiun  \  Brown, 
3  Conn.  299.)  In  cases  of  this  kind,  and  indeed  in  all  cases  where 
the  mental  capacity  is  in  any  respect  doubtful,  care  (hould  be 


PARTIES  TO  A  DEED.  377 

taken  to  explain  the  nature  of  the  transaction,  so  as  to  make  it  un- 
derstood by  the  grantor. 

An  idiot  or  lunatic  is  incapable  of  binding  himself  by  deed.  But 
mere  imbecility  of  mind,  not  amounting  to  idiocy  or  lunacy  in  the 
grantor,  is  not  sufficient  to  avoid  the  deed,  though  it  should  insure 
caution  in  those  who  are  called  upon  to  decide  upon  the  validity 
of  the  acts  of  such  persons.  The  definition  of  the  term  idiot  and 
lunatic,  seems  to  comprehend  only  those  who  show  a  total  want  of 
understanding,  in  the  first,  from  nativity,  and  in  the  second,  at  the 
time  of  doing  the  act  which  is  brought  in  question.  {Odell  v.  Buck, 
21  Wend.  142.  Jackson  v.  King,  4  Coioen,  207,  approved  in, 
Steioart's  Ex.  v.  Lispenard,  26  Wend.  298,  and  Blancliard  v.  Nes- 
tle, 3  Denio,  37.)  In  the  latter  of  which  cases,  the  common  law 
notion  of  idiocy  and  lunacy,  is  fully  set  forth  by  the  learned  judge. 

A  civil  corporation  may,  in  general,  convey  its  lands  like  a  nat- 
ural person;  but  religious  corporations  are  under  a  disability  in 
this  respect,  except  by  the  permission  of  the  supreme  court,  or  some 
tribunal  having  the  requisite  authority.  But  this  matter  will  be 
considered  more  at  large  in  the  following  chapter. 

Married  women,  at  common  law,  could  not  alien  their  lands  dur- 
ing the  coverture.  They  vv^ere  permitted  to  do  so  by  joining  with 
their  husband  in  the  conveyance,  and  acknowledging,  on  a  private 
examination  before  a  proper  officer,  that  they  executed  the  deed 
freely,  without  any  fear  of  their  husband.  By  some  recent  statutes, 
a  married  woman  of  lawful  age  can,  in  certain  cases,  alien  her  real 
estate  in  the  same  manner  as  if  she  was  sole.  This  branch  of  the 
subject  belongs  to  the  next  chapter,  where  it  will  be  treated  at 
large. 

By  the  common  law,  all  natural  persons  may  be  grantees  in  a 
deed,  because  it  is  supposed  to  be  for  their  advantage.  But  if  such 
grantees  are  infants,  married  women,  or  persons  of  insane  memory, 
they  may  disagree  to  such  deeds,  and  waive  the  estates  thereby  con- 
veyed to  them. 

A  grant  to  be  valid,  must  be  to  a  corporation,  or  to  some  certain 
person  named  who  can  take  by  force  of  the  grant,  and  hold  in  his 
own  right,  or  as  trustee.  A  grant  to  the  people  of  a  county  is  void. 
Formerly,  counties  were  not  esteemed  a  corporate  body;  and  it  was 
well  settled,  that  a  community,  not  incorporated,  could  not  pur- 
chase and  take  in  succession.     (Jackson  v.  Carry,  8  John.  388.) 


378  SECOND  REQUIREMENT.    CONSIDERATION. 

So  a  grant  to  the  inhabitants  of  a  town,  not  incorporated,  was  held 
to  he  void.  (Hornheck  v.  Wcstbrook,  9  id.  73.)  But  by  the  re- 
vised statutes  each  county  is  made  a  corporate  body,  with  capacity 
to  purchase  and  hokl  lands  within  its  own  limits,  and  for  the  use 
of  its  inhabitants.  (1  B.  S.  364.)  Strictly  speaking,  and  in  the 
absence  of  any  legislative  provision  on  the  subject,  the  acts  and 
proceedings  by,  to,  and  against  a  county,  should  be  in  the  name  of 
the  board  of  supervisors  of  such  county,  as  a  board,  and  not  of  the 
individuals  by  name;  but  the  statute  has  provided  that  every  con- 
veyance of  land  within  the  limits  of  the  county,  made,  in  any  man- 
ner, for  the  use  or  benefit  of  its  inhabitants,  shaU  have  the  same 
effect,  as  if  made  to  the  board  of  supervisors.  (Id.  Hill  v.  The 
Board  of  Supervisor's  of  Livingston  Co.  2  Kern.  52.  23  Barb. 
338.)  The  statute  has  also  given  to  the  several  towns  in  the  state 
a  certain  corporate  capacity.  They  may  purchase  and  hold  lands 
within  their  own  limits  for  the  use  of  their  inhabitants.  (1  B.  S. 
337.  Lorillard  v.  The  Toivn  of  Monroe,  1  Kern.  394.  Benton  v. 
Jackson,  3  John.  Ch.  320.)  But  neither  a  county  or  a  town  can 
hold  lauds  out  of  their  respective  limits,  unless  specially  authorized 
by  statute;  nor  for  purposes  not  connected  with  their  business  and 
duties  as  a  county  or  a  town.  They  cannot  embark  in  the  business 
of  buying  and  selling  lands  for  the  purpose  of  profit.  The  inten- 
tion of  the  law  doubtless  was  to  give  them  respectively  a  corporate 
capacity  to  take  and  hold  lands  for  a  court  house,  jail,  poor  house, 
town  house,  and  the  like.  The  general  law  for  the  incorporation 
of  villages,  (2  R.  S.  701  et  seq.  5th  ed.)  gives  to  such  villages  when 
incorporated  a  corporate  capacity  to  hold  lands  within  their  limits 
for  various  purposes,  and  in  some  cases  they  are  specially  author- 
ized to  take  and  hold  lands  without  their  corporate  limits  for  a 
cemetery  for  the  burying  of  the  dead.  The  power  of  holding  real 
estate  is  possessed  to  more  or  less  extent  by  all  our  cities  and  vil- 
lages heretofore  incorporated,  as  will  be  seen  by  reference  to  their 
charters;  but  it  is  not  deemed  necessary  to  insert  a  reference  to 
them  in  this  treatise. 

2.  With  regard  to  the  consideration,  it  was  not  deemed  essential 
at  common  law,  to  the  validity  of  a  deed,  that  it  should  express  a 
consideration.  {Cunningham  v.  Freeborn,  11  Wend.  248.)  And 
80,  under  the  revised  statutes,  a  conveyance  actually  delivered  and 
accepted  of  aU  the  real  estate  of  a  party,  is  good  and  vaHd  as 


CONSIDERATION.  379 

a  grant,  although  there  be  no  express  consideration  to  support  it. 
This  is  so,  whether  the  grant  be  a  beneficial  one,  or  in  trust  for  the 
payment  of  debts,  and  in  the  latter  case  it  is  unnecessary  that  the 
creditors  should  be  parties  to  it.     (Id.) 

But  although  a  deed  be  good  between  the  parties,  and  effectual 
to  vest  the  estate  of  the  grantor  in  the  grantee,  without  any  consid- 
eration being  expressed  therein,  yet  such  deed  may  be  impeached 
by  creditors  of  the  grantor  for  fraud.  A  man  in  unembarrassed  . 
circumstances  may,  if  he  pleases,  give  his  property  to  a  friend  or  a 
stranger,  and  in  the  absence  of  fraud  or  imposition,  the  courts  -svill 
not  interfere  with  it.  Even  a  voluntary  deed  is  not  void  in  law, 
as  made  to  defraud  creditors,  if  the  grantor  had,  at  the  time,  enough 
other  property  to  pay  all  his  debts.  {Jackson  v.  Post,  15  Wend. 
588.)  Indeed,  the  distinction  which  had  previously  been  supposed 
to  exist  between  fraud  in  fact  and  fraud  in  law,  in  voluntary  con- 
veyances, seems  to  have  been  repudiated  in  subsequent  cases. 
{Seward  v.  Van  Wijck,  8  Cowen,  406.  Jackson  v.  Feck,  4  Wend. 
300.  Same  v.  Timmerman,  7  id.  437.)  In  the  case  of  a  volutary 
conveyance,  as  much  as  in  any  other,  the  question  is  as  to  the  ac- 
tual fraud,  and  is  to  be  passed  upon  by  the  jury.  Where  there  is 
amj  valuable  consideration,  the  deed  is  not  voluntary,  and  the 
adequacy  of  it  is  only  material  upon  the  question  of  fraudulent 
intent.     (Id.) 

There  are  various  reasons  why  it  is  advisable  that  a  deed  should 
express  the  consideration  on  Avhich  it  is  granted.  Courts  of  equity 
never  lend  their  aid  to  carry  into  execution  voluntary  conveyances. 
There  must  either  be  a  good  or  a  valuable  consideration,  or  some- 
thing equivalent  thereto.  (J\Iinturn  v.  Seymour,  4  John.  Cli.  497. 
Acker  V.  Fhoenix,  4  Paige,  305.  Willard's  Eq.  Jur.  263.)  If 
the  deed  requires  the  aid  of  a  court  of  equity  to  vary  its  terms,  it 
will  not  be  granted  in  favor  of  a  volunteer. 

A  voluntary  conveyance  may  become  valid  upon  matter  ex  post 
facto,  or  it  may  acquire  validity  so  far  as  concerns  the  claims  of 
others.     (  Wood  v.  Jackson,  8  Wend.  9.) 

Considerations  are  of  two  kinds,  good  and  valuable.  The  first  is 
naerely  a  moral  consideration;  such  as  arises  from  an  implied  obli- 
gation, and  which  subsists  between  parent  and  child.  The  love 
and  affection  subsisting  between  near  relatives,  and  the  desire  of 
preserving  his  name  and  family,  are  frequently  held  to  be  good  con- 
siderations.    The  second,  called  a  valuable  consideration,  is  money 


380  THIRD:  WRITING. 

or  other  valuable  thing.  Marriage  is  a  valuable  consideration. 
(Whelan  v.  Whelan,  3  Cowcn^  537.  Verjplank  v.  Sterry,  12 
John.  536,) 

3.  The  third  essential  circumstance  to  the  validity  of  a  deed  is, 
that  it  must  be  written  or  printed  on  paper  or  parchment.  If  it  be 
made  on  a  piece  of  wood,  or  upon  a  piece  of  linen,  or  on  the  bark 
of  a  tree,  or  on  a  stone  or  the  like,  and  the  same  be  sealed  or  deliv- 
ered, it  is  no  deed.  (Co.  Litt.  229  a.)  The  reason  assigned  for 
this,  by  Coke,  is  that  a  writing  upon  paper  or  parchment  is  less 
subject  to  alteration  or  corruj)tion  than  upon  the  other  substances. 

It  is  usual  that  the  instrument  is  written  or  printed  and  sub- 
scribed with  ink,  as  that  is  in  general  the  most  durable,  and  most 
difficult  to  be  effaced.  But  with  regard  to  the  note  or  memoran- 
dum of  the  agreement  which  the  statute  of  frauds  requires  to  be  in 
writing,  and  subscribed  by  the  party  to  be  charged,  (2  R.  8.  134, 
§  6,)  it  has  been  held  in  this  state,  both  by  the  supreme  court  and 
the  late  court  of  errors,  that  a  memorandum  written  and  subscribed 
with  a  lead  pencil,  was  as  valid  as  if  wi-itten  with  pen  and  ink. 
(3Ie7'ritt  v.  Classon,  12  John.  102;  affirmed  on  error,  14  id.  484,  by 
name  of  Classon  v,  Bailey,  and  a^jproved  by  the  same  court  in  the 
later  case  of  Davis  v.  Shield,  26  Wend.  354.)  It  appears  by  the 
note  of  the  revisers,  that  the  opinion  of  Chancellor  Kent  in  Classon 
V.  Bailey,  (supra,)  was  before  the  legislature,  when  the  statutes 
were  revised  in  1830,  and  with  a  knowledge  of  what  he  had  said  on 
the  subject,  they  left  the  language  of  the  statute  of  frauds  in  that 
respect  unaltered.  The  statute,  the  chancellor  observed,  requires  a 
writing  &c.,  but  does  not  tell  us  with  what  instrument  it  may  be 
written.  He  then  proceeds  thus :  "To  write  is  to  express  our  ideas 
by  letters  visible  to  the  eye.  The  mode  or  manner  of  impressing 
those  letters  is  no  part  of  the  substance  or  definition  of  writing. 
A  pencil  is  an  instrument  with  which  we  write  without  ink.  The 
ancients  understood  alphabetical  waiting  as  well  as  we  do,  but  it  is 
certain  that  the  use  of  paper,  pen  and  ink  was  for  a  long  time  un- 
known to  them.  In  the  days  of  Job  they  wrote  upon  lead,  with  an 
iron  pen.  The  ancients  used  to  write  upon  hard  substances,  as 
stones,  metals,  ivory,  wood,  &c.  with  a  style  or  iron  instrument. 
The  next  improvement  was  writing  on  waxed  tables;  until  at  last 
paper  and  parchment  were  adopted,  when  the  use  of  the  calamus  or 
reed  was  introduced.     The  common  law  has  gone  so  far  to  regulate 


FOURTH :  PROPER  WORDS— PARTIES.  381 

vmitings  as  to  make  it  necessary  that  a  deed  should  be  written  on 
paper  or  parchment,  not  on  wood  or  stone.  This  was  for  the  sake 
of  durabihty  and  safety;  and  this  is  all  the  regulation  that  the  law 
has  prescribed.  The  instrument,  or  the  material  by  which  letters 
were  to  be  impressed  on  paper  or  parchment,  has  never  yet  been  de- 
fined. This  has  been  left  to  be  governed  by  public  convenience  and 
usage;  and  as  far  as  questions  have  arisen  on  the  subject,  the  courts 
have,  \\T.th  great  latitude  and  liberality,  left  the  parties  to  their  own 
discretion."  He  then  adverts  to  the  well  known  fact,  that  it  has  long 
been  held  that  printing  is  writing,  and  making  a  mark  is  a  suh- 
scrihing  within  the  meaning  of  the  law,  and  that  the  ecclesiastical 
courts  had  admitted  to  probate  a  codicil  to  a  will  wi-itten  in  pencil. 
And  he  fully  concurred  in  opinion  with  the  supreme  court,  which 
upheld  the  validity  of  the  agreement  written  by  a  lead  pencil.  The 
court  of  errors  unanimously  agreed  with  him,  {See  Willard  on 
Executors,  113.) 

The  question  whether  a  deed  written  and  subscribed  with  a  lead 
pencil,  is  valid,  does  not  seem  to  have  arisen.  It  is  the  most  pru- 
dent course  to  continue  the  use  of  pen  and  ink  until  the  legislature 
or  the  higher  courts  sanction  a  different  mode. 

4.  The  next  circumstance  to  be  noted  is,  that  the  deed  must 
contain  proper  words  for  expressing  the  contract,  and  that  they 
should  be  legally  and  orderly  set  forth.  Although  the  statute  does 
not  prescribe  the  different  parts  of  a  deed,  and  the  omission  of  all 
but  the  granting  part  would  not  invalidate  the  instrument,  it  is 
nevertheless  the  more  correct  and  lawyer-like  mode  of  conveyancing, 
to  adhere  to  forms  which  have  been  long  established  and  sanctioned 
by  general  usage. 

The  orderly  parts  of  a  deed  are,  1.  The  premises;  the  office  of 
which  is  rightly  to  set  down  the  names  of  the  parties,  grantor  and 
grantee,  together  with  their  place  of  abode,  or  other  matter  of  de- 
scription, the  recital  if  there  be  any,  the  consideration  and  the 
receipt  thereof,  the  grant,  the  description  of  the  thing  granted,  and 
the  exception  if  there  be  any.  2.  The  habendum  and  tenendiim,  the 
office  of  which  is  to  set  forth  the  kind  of  estate  which  is  granted, 
for  what  time  and  the  tenure  by  which  held.  These  are  not  essen- 
tial parts  of  our  deeds,  if  the  quantity  of  interest  conveyed  has 
been  already  stated  in  the  premises.  They  are  merely  inserted  in 
pursuance  of  custom.     3.  The  redendum,  which  is  that  by  which 


382  FIFTH:  READING.    SIXTH:  SUBSCRIBING. 

the  grantor  reserves  something  to  himself,  as  the  payment  of  rent 
in  a  lease.  4.  The  condition,  of  which  enough  has  been  said  in  a 
previous  chapter.  5.  The  warranty.  6.  The  covenants,  if  any. 
7.  The  conclusion,  in  which  is  set  forth  the  date,  if  it  has  not 
already  been  inserted.  {Sliep.  Touch.  52.  Cruise's  Dig.  tit.  32,  Deed, 
cJi.  2.     2  ^?.  Com.  297  et  seq.) 

5.  The  fifth  circumstance  essential  to  a  deed  is,  that  it  be  read 
if  either  of  the  parties  so  require.  If  it  is  not  read,  it  is  void  as 
to  the  party  who  required  it  to  be  read.  If  he  can,  he  should  read 
it  himself;  if  he  be  blind  or  illiterate,  another  must  read  it  for  him. 
It  may  always  be  read  by  another  at  the  request  of  the  parties,  and 
is  usually  read  by  the  scrivener.  If  it  be  read  falsely  it  will  be 
void.  In  Lansing  v.  Bussell,  (13  Barh.  510,)  the  supreme  court 
said  that  a  deed  in  the  nature  of  a  testamentary  instrument,  pur- 
porting to  be  signed  by  his  mark  by  the  grantor,  who  at  the  date 
of  the  deed  was  in  his  90th  year,  partly  deaf  and  nearly  blind,  and 
who  was  laboring  under  a  disease  which  rendered  him  nearly  help- 
less, and  which  deed  was  in  the  handwriting  of  the  husband  of  the 
grantee,  and  witnessed  only  by  her  son,  and  which  recited  in  the 
body  of  it  that  the  object  of  the  deed  was  to  place  the  grantee  upon 
a  footing  of  equality  with  the  other  children  of  the  grantor,  re- 
quires for  its  support  something  more  than  the  proof  of  the  sub- 
scribing witness  that  he  saw  it  executed  by  the  grantor.  If  the 
condition  of  the  grantor  be  such  as  to  throw  a  doubt  over  his  capa- 
city to  make  a  deed;  if  he  be  greatly  infirm,  or  his  mind  imbecile, 
the  instrument  should,  before  it  is  executed,  be  distinctly  read  or 
explained  to  the  grantor,  by  a  disinterested  party,  who  should  also 
subscribe  his  name  as  a  witness  to  its  execution.  {See  also  Lan- 
sing V.  Russell,  3  Barh.  Ch.  325.) 

But  a  deed  will  not  be  avoided  on  the  ground  of  fraud  or  mis- 
take, because  the  whole  was  not  read  by  the  grantor.  (Jackson  v. 
Corey,  12  John.  427.) 

6.  The  sixth  circumstance  is  that  the  deed  should  be  subscribed 
and  sealed  by  the  party  whose  deed  it  is.  A  scrawl  with  a  pen  of 
the  letters  L.  S.,  or  any  other  words,  is  not  a  seal,  within  the  mean- 
ing of  the  law.  In  some  of  the  states  it  is  understood  that  such 
letters  added  to  the  signature  constitute  a  seal,  and  will  thus  turn 
a  simple  contract  into  a  specialty.  But  it  is  not  the  law  of  this 
state.     With  us  a  seal  is  wax  or  wafer  with  an  impression.     It  is 


SEALING.    WHEN  A  QTAllF  SUFFICIENT.  383 

immaterial  of  what  tlie  wax  is  composed.  It  must  ob^dollsly  he 
some  tenacious  matter,  that  will  receive  an  impression  and  adhere 
to  the  paper.     (Warren  y.  Lynch,  5  John.  239.)  ^ 

The  leo-islature  have  so  for  changed  the  common  law  m  this  re- 
spect, as  to  aUow  the  impression  of  the  seal  of  any  court  by  stamp, 
to  he  a  sufficient  sealing  in* all  cases  where  sealing  is  reciuired. 
(2RS  276.)  And  by  other  statutes,  the  same  provision  is  ex- 
tended to  the  seal  of  public  officers,  the  seal  of  notaries  public,  and 
the  common  seal  of  incorporations.  (L.  of  1859,  jp.  883.  2  B.  S. 
404.     Act  0/1848,  ch.  197,^1.     3  R.  S.  687,  5th  ed.) 

Several  persons  may  bind  themselves  by  one  seal.  (Machay  v. 
Bloodgood,  9  John.  285.     Toionsend  v.  Eubhard,  4  EiU,  351.)  _ 

The  real  estate  of  a  corporation  can  be  conveyed  by  it  only  m  its 
corporate  capacity,  and  not  by  the  individual  members  of  the  cor- 
poration, or  the  stockholders.     {Wilde  v.  Jenkins,  A  Paige,  481.) 
At  common  law  the  seal  of  a  corporation,  like  that  of  an  mdmd- 
ual  was  void  unless  impressed  on  wax  or  some  other  adhesive  sub- 
stance.    (The  Farm.  &  M.  Bank  v.  Haight,  3  Sill,  493.)     But  by 
the  act  of  1848,  already  cited,  in  aU  cases  where  a  seal  of  any  cor- 
poration is  authorized  or  required,  the  same  may  be  affixed  by 
making  an  impression  directly  on  the  paper,  which  is  thus  made  as 
valid  and  effectual  as  if  on  a  wafer  or  wax.     This  statute  extends 
to  municipal  corporations,  as  well  as  to  civil  and  rehgious  corpora- 
tions.    It  puts  those  bodies  having  a  common  seal,  on  the  same 
footing,  in  this  respect,  as  courts  and  public  officers.     The  statute 
had  a  retrospective  operation  upon  deeds  made  by  the  corporation 
of  the  city  of  Albany. 

The  seal  of  a  corporation  should  be  affixed  by  the  officer  to  whom 
the  custody  of  it  is  confided,  by  the  cUrection  of  the  managing  offi- 
cers of  the  institution,  and  not  without.  Iii  the  absence  of  all 
proof  to  the  contrary,  the  court  will  perhaps  presume,  when  the  in- 
strument is  signed  by  the  proper  officer,  that  the  seal  was  affixed 
by  him  by  the  express  authority  of  the  trustees.  (Jackson  v.  Camp- 
hell,  5  Wend.  575.) 

Where  a  power  to  sell  is  conferred  upon  a  corporate  body,  the 
deed  should  be  executed  in  the  name  and  under  the  seal  of  the  cor- 
poration. But  that  rule  was  held  not  to  apply  where  the  trustees 
of  a  gospel  lot  were  declared  by  law  to  be  a  corporation,  and  were 
by  name  of  trustees  authorized  to  take  possession,  lease  or  sell  the 
lot.    Such  an  authority,  the  court  thought,  was  well  executed  by  the 


384  SEVENTH:  DELIVEPwY. 

individual  trustees,  under  their  hands  and  seals,  describing  them- 
selves as  such  trustees  in  the  deed.  (X>e  Zeng  v.  Beehman,  2  Hill^ 
489.) 

7.  The  seventh  requirement  is  that  the  deed  be  delivered  by  the 
party  himself  or  his  attorney.  The  deed  takes  effect  from  its  de- 
livery, and  not  from  its  date,  unless  the  latter  be  coincident  with 
the  delivery.  (Jackson  v.  Bard,  4  John.  230,  Same  v.  ScJioon' 
maker,  2  id.  230.     Carver  v.  Jackson,  4  Fet.  1-22.) 

It  has  sometimes  been  said  that  the  date  is  presumptively  the 
time  of  the  execution  of  the  deed.  But  it  has  been  held,  that  since 
the  revised  statutes,  (1  M.  S.  738,)  there  is  no  such  presumption 
as  to  a  deed  not  acknowledged  or  proved,  and  having  no  subscrib- 
ing witness.  And  the  presumption  in  all  cases  fails  where  there  is 
positive  proof  that  it  was  in  the  hands  of  the  grantor  after  the  day 
of  its  date.  {Elsey  v.  Metcalf,  1  Ben.  323.)  And  where  there  is 
positive  evidence  that  it  was  not  executed  till  sometime  after  its 
date,  the  date  is  no  evidence  whatever  of  the  time  of  its  execution. 
{Costigan  v.  Gould,  5  id.  290.) 

Though  a  deed  cannot  in  general  be  contradicted  by  parol  evi- 
dence, yet  such  evidence  is  competent  to  show  that  the  deed,  though 
it  be  in  the  hands  of  the  grantee,  was  in  truth  never  delivered. 
(Roberts  v.  Jackson,  1  Wend.  478.) 

The  deed  of  a  corporation,  it  is  said,  does  not  need  a  delivery. 
The  affixing  of  the  corporate  seal  gives  perfection  to  it,  without 
further  ceremony,  if  it  be  done  with  that  intent;  yet  it  has  no  such 
effect  if  the  order  for  affixing  the  seal  be  accompanied  with  a  direc- 
tion to  their  clerk  to  retain  the  conveyance  in  his  hands  till  ac- 
counts were  adjusted  with  the  purchaser.  {Berhy  Canal  Co.  v. 
WUmot,  9  East,  360.) 

The  usual  way  of  delivering  a  deed,  as  described  by  the  text  wri- 
ters, is  to  take  it  up  and  say,  "I  deliver  this  as  my  act  and  deed." 
It  is  in  general  recommended  to  those  engaged  in  the  business  of 
conveyancing,  to  use  some  words  like  the  above,  or  of  equivalent 
meaning,  when  the  instrument  is  delivered.  The  repeating  of  some 
such  formula  at  the  time  of  the  execution  of  the  instrument,  is  cal- 
culated to  impress  the  fact  upon  the  recollection  of  the  witnesses, 
and  to  obviate  all  subsequent  disputes  on  the  subject.  But  a 
formal  delivery  is  not  essential;  it  is   sufficient  that  such  acts 


DELIVERY  AS  AN  ESCROW.  355 

appear  as  show  an  intention  to  deliver.  {Goodrich  v.  Walker,  1  John. 
Cases,  250.) 

In  general  the  deed  should  be  delivered  to  the  grantee,  or  to  some 
one  authorized  by  him  to  receive  it,  or  it  may  be  to  a  stranger  for 
the  use  of  the  grantee,  without  any  authority  from  the  latter.  It 
has  been  held  that  the  delivery  of  a  deed  to  the  clerk  of  the  county 
for  the  use  of  the  defendant  was  a  perfect  delivery  to  the  grantee; 
and  upon  the  acceptance  by  the  latter  the  deed  took  effect  from  the 
time  of  such  delivery.  (Bathbun  v.  Rathhm,  6  Barh.  98,  103. 
Elsey  V.  Metcalf,  supra.)  The  subsequent  assent  of  the  grantor, 
in  cases  of  this  kind,  is  equivalent  to  an  original  authority,  and  the 
deed  becomes  valid  from  the  time  of  the  original  delivery.  (The 
Lady  Superior  v.  McNamara,  3  Barh.  Ch.  375.  Church  v.  Gil- 
man,  15  Wend.  656.  Souverhye  v.  Arden,  1  John.  Ch.  240.)  But 
in  all  cases  where  the  deed  is  delivered  to  a  third  person  for  the  use 
of  the  grantee,  without  the  authority  of  the  latter,  such  delivery  is 
invalid,  unless  the  grantee  assent  thereto.  If  the  delivery  to  such 
third  person  be  absolute,  the  grantor  not  reserving  any  future  con- 
trol over  the  deed,  the  estate  passes;  the  assent  of  the  grantee  to 
accept  the  conveyance  being  presumed,  from  the  fact  that  the  con- 
veyance is  beneficial  to  him.     {Church  v.  Gilman,  supra.) 

The  delivery  of  a  deed  may  be  to  the  party  himself  or  to  a  stran- 
ger for  his  use  absolutely;  or  it  may  be  delivered  to  a  third  person 
to  keep  tiU  something  be  done  by  the  grantee  and  then  delivered  to 
the  latter.  This  is  called  delivering  the  deed  as  an  escrow.  An 
escrow  takes  effect  only  from  delivery  on  performance  of  the  condi- 
tion. Such  deed  does  not  take  effect  until  the  condition  is  perform- 
ed and  the  deed  is  delivered  over,  and  in  the  mean  time  the  estate 
remains  in  the  grantor.  {Green  v.  Putnam,  1  Barh.  8.  C.  B.  500. 
Jackson  v.  Bowland,  6  Wend.  QQQ.  Frost  v.  Beekman,  1  John. 
Ch.  288.     18  John.  544.) 

Where  a  deed  is  delivered  as  an  escrow,  and  either  of  the  parties 
dies  before  the  condition  is  performed,  and  afterwards  the  condition 
is  performed,  the  deed  is  valid  and  takes  effect  from  the  first  deliv- 
ery. Thus,  where  A.  having  executed  a  deed  of  lands  in  consider- 
ation of  natural  love  and  affection  to  two  of  his  sons,  and  delivered 
it  to  C,  to  be  delivered  to  them  in  case  A.,  the  grantor,  should  die 
without  making  a  will;  A.  having  died  without  making  a  will,  0. 
delivered  the  deed  to  the  sons.  This  was  held  to  be  effectual  from 
the  first  delivery.     {Buggies  v.  Lawson,  1.3  John.  285.)     So,  also, 

Will.— 25 


386  ESCROW.    EIGHTH:  ATTESTATION. 

when  a  deed  of  lands  was  delivered  as  an  escrow,  and  an  absolute 
delivery  was  subsequently  made;  but  previous  to  the  second  deliv- 
ery a  judgment  was  obtained  against  the  grantor,  under  which,  the 
land  was  sold,  it  was  held  that  the  purchaser  under  the  judgment 
was  entitled  to  the  land,     {Jackson  v.  Roioland,  supra.) 

Two  things  are  to  be  attended  to  in  the  delivery  of  a  deed  as  an 
escrow:  1.  It  must  be  delivered  to  a  stranger;  for  if  it  be  delivered 
to  the  party  himself  to  whom  it  is  made,  or  his  agent,  as  an  escrow, 
upon  certain  conditions,  the  delivery  is  absolute  and  the  title  passes, 
and  the  grantee  is  not  bound  to  perform  the  condition.  (  Worrall 
v.  llunn,  1  Seld.  229.)  2.  Apt  words  should  be  used  indicating 
an  intention  that  the  title  shall  not  pass  until  the  condition  be  per- 
formed. The  form  of  words  laid  down  in  the  Touchstone,  (p.  59,) 
slightly  altered  to  conform  to  our  practice,  is :  "I  deliver  this  to 
you  as  an  escrow,  to  deliver  to  the  grantee  as  my  deed  upon  con- 
dition that  he  delivers  to  you  one  hundred  dollars,"  (or  any  other 
sum  agreed  upon,  or  upon  his  performing  certain  other  specified 
conditions,  as  the  case  may  be.)  If,  says  the  Touchstone,  when  I 
deliver  the  deed  to  the  stranger,  I  shall  use  these  or  the  like  words : 
"  I  deliver  this  to  you  as  my  deed,  and  that  you  shall  deliver  it 
to  the  party  upon  certain  conditions;  or  I  deliver  this  to  you  as 
my  deed,  to  deliver  to  the  grantee  when  he  comes  to  London;"  in 
these  and  the  like  cases,  the  deed  takes  effect  presently,  and  the 
grantee  is  not  bound  to  perform  the  conditions.  Note  the  diversity. 
In  the  proper  form  of  this  conditional  delivery,  the  words,  as  an 
escroiv,  are  made  to  qualify  the  delivery  by  the  grantor  to  the 
Btranger,  and  his  right  to  deliver  it  over,  is  also  made  subject  to 
a  conditioii.  In  the  latter  form,  the  title  passes  by  the  first  deliv- 
ery to  the  stranger.  It  is,  therefore,  inconsistent  with  the  rights 
of  ownership,  that  the  handing  over  the  deed  to  the  grantee  should 
be  conditional. 

8.  The  eighth  circumstance  is  the  attestation  of  the  instrument  by 
the  attesting  witness.  A  deed  is  good  as  between  the  parties  with- 
out any  attesting  witness,  or  acknowledgment;  and  at  common  law, 
it  was  good  as  against  all  the  world.  The  statute  which  declares 
that  such  deed  shall  not  take  effect  as  against  purchasers  or  incum- 
brancers until  acknowledged,  refers  to  subsequent  purchasers  and  in- 
cumbrancers. (1  B.  S.  738,  §  137.  Wood  v.  CJiapin,  3  Kernan, 
509.)  The  requirement  of  one  or  more  subscribing  witnesses  to 
the  execution  of  a  deed,  or  an  acknowledgment,  or  proof  of  its  ex  - 


SUBSCRIBING  WITNESS.  387 

ecution  before  a  public  officer,  is  a  statute  regulation  which  is  dif- 
ferent in  the  different  states;  and  which,  prior  to  the  revision  of 
the  laws  in  1830,  was  different  in  this  state,  at  different  times. 

With  regard  to  what  is  a  good  attestation  by  a  witness,  it  is  gen- 
erally understood  that  a  subscribing  witness  is  one  who  was  present 
when  the  instrument  was  executed,  and  who  at  that  time  subscribed 
his  name  to  it  as  a  witness  of  the  execution.  {Henry  v.  Bishop, 
2  Wend.  575.)  The  witness  need  not  be  present  at  the  moment 
of  the  execution.  If  he  is  called  in  by  the  parties  immediately  af- 
terwards, and  told  by  the  grantor  that  it  is  his  deed,  and  requested 
to  sign  his  name  as  a  witness,  it  is  enough.  The  execution  by  the 
parties  and  the  subscribing  by  the  witness,  are  thus  considered 
as  parts  of  the  same  transaction.  {Hollenheck  v.  Fleming^  6 
Hill,  305.) 

If  there  be  no  subscribing  witness  to  the  deed,  and  a  question 
arises  as  to  its  execution  on  the  trial  of  a  cause,  proof  of  the  hand- 
writing of  the  grantor,  by  any  person  acquainted  with  it,  is  admis- 
sible evidence.  The  execution  of  it  may  also  be  proved,  in  such  a 
case,  by  a  witness  who  was  present  and  saw  it  executed,  though  he 
did  not  subscribe  his  name  as  a  witness.  If,  however,  there  was  a 
subscribing  witness,  he  must  be  called  or  his  absence  accounted 
for;  as  by  showing  that  he  is  dead,  or  out  of  the  jurisdiction  of  the 
court,  or  the  like.  The  necessity  of  calling  the  subscribing  witness, 
when  he  can  reasonably  be  procured,  arises  from  the  reason,  that 
he  is  the  person  selected  and  agreed  on  by  the  parties,  as  the  wit- 
ness to  their  act  in  making  the  instrument,  with  the  attending  cir- 
cumstances. Where  there  is  a  subscribing  witness,  who  can  be 
called,  it  is  not  competent  to  permit  another  person,  who  was  pres- 
ent at  the  execution  of  the  instrument,  but  who  was  not  then  re- 
quested to  attest  it,  to  add  his  name  at  a  subsequent  day,  without 
the  request  of  the  parties,  and  thus  become  a  witness  instead  of  the 
one  who  signed  at  the  time  of  the  execution.  {Henry  v.  Bishop, 
2  Wend.  575.  Hollenheck  v.  Fleming,  supra.)  Proof  of  the  con- 
fession or  acknowledgment  of  the  party  that  he  executed  the  deed, 
will  not  be  a  substitute  for  the  testimony  of  the  subscribing  wit- 
ness.    (Id.) 

In  Jackson  v.  Phillips,  (9  Cowen,  113,)  the  chief  justice,  speak- 
ing of  the  execution  of  a  deed,  says :  "If  the  parties  choose  to  sign 
their  names  alone,  and  then  call  witnesses  before  whom  they  ac- 
knowledge the  instrument,  that  is  a  good  execution.     And  should 


388     SUBSCRIBING  WITNESS. .  NINTH  :  ACKNOWLEDGMENT. 

some  time  intervene,  (years  if  you  please,)  I  can  see  no  difference. 
It  is  a  redelivery  of  the  deed,  whicli  then,  at  least,  becomes  effect- 
ual. This  evidence  would  he  good  and  sufficient  to  prove  the  deed 
in  a  court  of  law,  and  therefore  is  sufficient  before  the  judge  or  com- 
missioner." This  doctrine  is  questioned  by  Bronson,  J.  in  Hollen- 
heck  V.  Fleming,  (supra.)  It  is  an  authority  at  least  to  show  that 
a  deed  is  good  between  the  parties  without  a  subscribing  witness. 
Whether  such  an  acknowledgment  would  entitle  the  deed  to  be  re- 
corded, and  to  relate  back  to  the  original  signing,  will  be  hereafter 
considered.  {Voorhees  v.  Presbyterian  Church  of  Amsterdam, 
17  Barb.  103,  as  to  validity  of  an  unwitnessed  deed.) 

The  statute  does  not  say  who  may  or  may  not  be  witnesses  to  a 
deed.  It  is  the  most  discreet  course  for  the  conveyancer  to  permit 
none  but  a  comj)etent,  as  well  as  credible  and  disinterested  person,  to 
be  a  subscribing  witness.  In  case  a  question  of  mental  capacity 
should  arise  with  resj)ect  to  the  validity  of  the  deed,  the  testimony 
of  credible  and  disinterested  witnesses,  of  good  character,  would 
weigh  more  than  that  of  witnesses  of  a  different  description;  espe- 
cially as  their  opinions  on  the  capacity  of  the  grantor  are,  within 
certain  limits,  admissible.  {De  Witt  v.  Baily,  17  N.  7.  R.  340. 
5  Seld.  371.  Cidver  v.  Easlam,  7  Barb.  314.)  The  relation  which 
the  subscribing  witness  bore,  at  the  time,  to  the  parties,  is  always 
open  to  observation  in  case  of  a  controversy  about  the  execution  of 
the  deed.  (See  Lansing  v.  Eussell,  13  Barb.  510,  524.)  It  wiU 
be  shown,  under  the  next  head,  that  the  witness  should  not  only 
be  competent,  but  disinterested.     (1  R.  S.  759,  §  17.) 

9.  The  ninth  circumstance  is  that  the  deed  should  be  acknowl- 
edged before  a  proper  officer,  or  the  proof  of  its  execution  made  by 
one  of  the  subscribing  witnesses  before  such  officer.  We  have  seen 
under  the  preceding  head,  that  an  unattested  deed  is  valid  between 
the  parties.  But  under  our  statutes  it  is  a  matter  of  great  import- 
ance, that  a  deed  should  be  not  only  attested,  but  acknowledged  oi 
proved  before  a^  proper  officer.  It  is  enacted  that  every  conveyance, 
acknowledged  or  proved  and  certified  in  the  manner  required  by  the 
act,  by  any  of  the  officers  duly  authorized  for  that  purpose,  may 
be  read  in  evidence  vdthout  further  proof  thereof,  and  shall  be  en- 
titled to  be  recorded.  (1  R.  S.  759,  §  16.)  The  record  of  a  con- 
veyance duly  recorded,  or  a  transcript  thereof  duly  certified,  may 
also  be  read  in  evidence  with  the  like  force  and  effect  as  the  original 


ACKNOWLEDGMENT.  389 

conveyance.  Neither  the  certificate  of  the  acknowledgment,  or  of 
the  proof  of  any  conveyance,  nor  the  record,  or  transcript  of  the 
record,  of  such  conveyance,  shall  be  conclusive,  but  may  be  rebut- 
ted, and  the  force  and  effect  thereof  may  be  contested  by  any  party 
affected  thereby.  If  the  party  contesting  the  proof  of  a  conveyance 
shall  make  it  appear  that  such  proof  was  taken  upon  the  oath  of 
an  interested  or  incompetent  witness,  neither  such  conveyance  nor 
the  record  thereof  shall  be  received  until  established  by  other  com- 
petent proof.  {Id.  §  17.  Clarh  v.  Nixon,  5  Hill,  36.  Dempsey 
V.  Ttjlee,  3  Duer,  73.)  In  this  way  the  subscribing  witness  maybe 
impeached,  as  well  as  if  he  had  been  sworn  on  the  trial  of  the  cause, 
and  may  doubtless  in  like  manner  be  supported. 

As  the  revised  statutes  have  now  been  in  force  more  than  thirty 
years,  and  the  principles  on  which  they  are  based  have  not  been 
essentially  changed  since  that  time,  it  will  rarely  be  necessary  to 
look  into  the  laws  with  respect  to  the  acknowledgment  and  proof 
of  conveyances  at  an  earlier  day.  It  is  quite  certain  that  prior  to 
1710,  deeds  were  not  only  acknowledged,  but  also  proved  by  the 
subscribing  witness,  before  the  officer  who  allowed  them  to  be  re- 
corded. A  transcript  of  such  deed  as  well  as  the  record  of  it  was 
evidence.  (Van  Cortland  v.  Tozer,  17  Wend.  338;  S.  C.  in  error, 
affirmed,  20  Wend.  423,  427.) 

There  are  numerous  cases  in  our  reports  in  relation  to  these  an- 
cient deeds,  but  it  is  not  deemed  important  to  occupy  any  space 
with  a  description  of  them.  (See  Jackson  v.  Schoonmaker,  2  John. 
330;  Same  v.  Woodrvff,  15  id.  89.) 

The  existing  laws  on  the  subject  are  the  revised  statutes  of  1830, 
(1  B.  S.  756,)  and  the  several  statutes  on  the  same  subject  which 
wiU  be  found  collected  in  3  B.  S.  45  et  seq.  5th  ec?.*  Most  of  the 
subsequent  statutes  relate  to  the  persons  before  whom  the  deed 
may  be  proved  or  acknowledged,  when  executed  out  of  this  state. 
It  does  not  seem  expedient  to  advert  more  fully  to  those  statutes. 
If  the  deed  be  acknowledged  or  proved  in  this  state,  it  may  be  done 
before  any  of  the  justices  of  the  supreme  court,  judges  of  county 
courts,  mayor  and  recorders  of  cities  or  commissioners  of  deeds,  or 
justices  of  the  peace  of  towns.  But  no  county  judge  or  commis- 
sioner of  deeds  can  take  such  proof  or  acknowledgment  out  of  the 
city  or  county  for  which  he  was  appointed.     Formerly  the  pro.of  or 

*  This  portion  of  the  existing  statutes  is  inserted  in  the  Appendix. 


390  ACKNOWLEDGMENT,  OR  PROOF. 

acknowledgment  could  be  taken  before  the  cbancellor,  circuit  judges 
and  supreme  court  commissioners;  but  when  those  offices  were  abol- 
ished by  the  constitution  of  1846,  those  duties  were  devolved  on  the 
judges  of  the  supreme  court  and  county  judges.  By  the  act  of 
1840,  ch.  238,  the  office  of  commissioner  of  deeds  was  abolished, 
and  the  powers  and  duties  of  such  commissioners  were  directed  to 
be  executed  by  the  justices  of  the  peace  in  the  several  towns  respec- 
tively. 

The  statute  requires  that  no  acknowledgment  of  any  conveyance 
ha^dng  been  executed  shall  be  taken  by  any  officer,  unless  the  offi- 
cer taking  the  same  shall  know,  or  had  satisfactory  evidence  that 
the  person  making  such  acknowledgment  is  the  individual  described 
in,  and  who  executed  such  conveyance.  (1  R.  S.  758,  §  9.)  The 
object  of  this  provision  was  to  guard  against  the  fraudulent  person- 
ation of  the  grantor.  Pre^nious  to  the  act  of  February,  1797,  relative 
to  the  acknowledgment  of  deeds,  it  was  not  necessary  that  the  cer- 
tificate should  state  the  fact  that  the  officer  knew  the  person  who 
made  the  acknowledgment  to  be  the  grantor  described  in  the  deed, 
or  that  his  identity  was  proved.  (Bradstreet  v.  Clark,  12  Wend. 
673.)  The  act  of  1794,  relative  to  conveyances  of  military  bounty 
lands,  (3  Web.  L.  45,)  which  required  an  actual  acknowledgment  by 
the  grantor,  prohibited  the  officer  from  taking  the  acknowledgment 
unless  he  knew,  or  had  satisfactory  proof,  that  the  person  making 
the  acknowledgment  was  the  same  person  described  in  the  convey- 
ance; but  it  did  not  require  that  fact  to  be  stated  in  the  certificate. 
This  defect  was  supplied  by  the  act  of  1798.  (Croivder  v.  Hop- 
kins, 10  Paige,  188.) 

The  foregoing  section  relates  to  the  acknowledgment  by  a  party 
Avho  is  sui  juris,  and  not  under  disability.  '  If  the  grantor  be  a  mar- 
ried woman  residing  in  this  state,  her  acknowledgment  is  not  to  be 
taken,  unless,  in  addition  to  the  requisites  contained  in  the  ninth 
section,  she  acknowledge,  on  a  private  examination  apart  from  her 
husband,  that  she  executed  the  same  freely  and  without  any  fear  oi 
compulsion  of  her  husband;  nor  shall  any  estate  of  any  such  mar- 
ried woman  pass  by  any  conveyance  not  so  acknowledged.  (1 R.  S 
778,  §  10.) 

This  statute  has  led  to  some  controversy.  In  Dennis  v.  Tarjye- 
ny,  (20  Barb.  371,)  the  officer  who  took  the  acknowledgment  of  a 
married  woman,  instead  of  certifying  as  the  law  required,  "  that  it 


ACKNOWLEDGMENT.  391 

was  taken  on  a  private  examination  of  the  wife  apart  from  her  hus- 
hand,  and  that  she  executed  the  same  freely  and  without  any  fear 
or  compulsion  of  her  hushand/'  stated  that  on  an  examination  be- 
fore him  of  the  wife,  "  separate  and  apart  from  her  husband,  she 
acknowledged  the  execution  of  the  same  without  fear  or  compulsion 
from  him."  This  was  held  to  be  a  sufficient  compliance  with  the 
act.  It  is  not  necessary  that  the  certificate  should  be  in  the  precise 
words  of  the  statute,  though  it  is  recommended  that  it  should  be,  as 
being  better  calculated  to  avoid  disputes.  In  llerriam  v.  Harsen, 
(2  Barb.  Ch.  232,)  the  officer  omitted  to  certify  that  it  was  exe- 
cuted by  the  wife  ^'freely,"  though  it  was  stated  to  be  "  without 
any  fear,  threat  or  compulsion  of  her  husband."  This  was  held  to 
be  sufficient. 

The  legislature,  in  1848  and  1849,  removed,  to  a  limited  extent, 
the  disability  of  coverture,  in  the  alienation  of  the  real  estate  of  the 
wife,  which  she  has  taken  by  inheritance  or  by  gift,  grant,  devise 
or  bequest,  from  any  person  other  than  her  husband.  She  is  al- 
lowed to  hold  such  property  to  her  sole  and  separate  use,  and  to 
convey  and  devise  the  same,  and  any  interest  or  estate  therein,  and 
the  rents,  issues  and  profits  thereof,  in  the  same  manner  and  with 
the  like  efiect  as  if  she  were  unmarried.  The  same  property  so  ac- 
quired is  exempted  from  the  disposal  of  her  husband,  and  is  not 
liable  for  his  debts.  (L.  o/1849,  p.  528.)  The  supreme  court  has 
decided,  with  reference  to  such  cases,  that  the  wife  need  not  ac- 
knowledge the  execution  of  the  instrument  by  which  she  conveys 
her  land,  thus  acquired,  on  a  private  examination  apart  from  her 
husband;  or  that  she  executed  the  same  freely  without  any  fear  or 
compulsion  of  her  husband.  The  court  thought  that  it  was  the  in- 
tention of  the  legislature  to  remove  the  disability  which  both  the 
common  law  and  the  statute  had  thrown  around  married  women, 
not  only  as  regards  their  right  to  take  and  hold,  free  and  independ- 
ent of  their  husbands,  but  also  as  to  their  power  of  alienation  by 
grant  or  devise.     (Blood  v.  Humphrey,  17  Barh.  660.) 

The  real  property  of  which  she  was  seised  or  possessed  prior  to 
the  marriage  is  not  affected  by  the  statutes  of  1848  and  1849.  The 
act  of  1860,  ch.  90,  allows  a  married  woman  to  bargain,  sell  and 
convey  such  property,  and  enter  into  any  contract  in  reference  to 
the  same,  but  it  declares  that  no  such  conveyance  or  contract  shall 
be  valid  without  the  assent  in  writing  of  her  husband;  except  in 
case  such  assent  cannot  be  procured  in  consequence  of  his  refusal, 


392  ACKNOWLEDGMENT  BY  FEME  COVERT. 

absence,  insanity  or  other  disability,  in  which  cases  leave  to  make 
such  conveyance  may  be  granted  by  the  county  court  of  the  county 
where  she  resides.  The  assent  of  the  husband  would  doubtless  be 
well  given  by  his  uniting  with  the  wife  in  the  conveyance,  in  which 
case  it  should  be  acknowledged  by  them  both,  as  in  other  cases  of 
deeds  by  husband  and  wife.  If  in  consequence  of  his  refusal  or 
inability  to  unite  with  her  in  the  deed,  and  she  executes  it  under 
the  direction  of  the  county  court,  the  certificate  of  acknowledgment 
should  probably  have  some  reference  to  the  authority  by  which  she 
acts.  But  we  are  at  present  without  any  adjudged  cases  on  the 
subject. 

At  common  law,  a  married  woman  could  not  convey  her  lands 
by  deed,  either  with  or  without  the  concurrence  of  her  husband. 
But  by  usage,  and  the  laws  of  the  colony  and  state  of  New  York, 
a  married  woman  might,  before  the  late  statutes,  convey  her  lands, 
or  any  interest  she  might  have  in  lands,  by  deed  duly  acknowledged; 
and  such  conveyance  was  valid  although  her  husband  did  not  join 
therein.  {The  Albany  Fire  Ins.  Co.  v.  Bay,  4  Comst.  9.)  In  cases 
not  Vkithin  some  special  statute,  the  deed  of  a  feme  covert  is  not 
binding  upon  her  until  acknowledged;  and  her  subsequent  acknowl- 
edgment has  no  retrospective  operation.  This  is  the  same  whether 
she  executes  the  deed  alone,  or  in  conjunction  with  her  husband. 
{Jackson  v.  Stevens,  16  John.  110.  Same  v.  Cairns,  20  id.  301. 
Knowles  v.  McCamly,  10  Paige  342.  Ehoood  v.  Klock,  13  Barb. 
50.)  If  the  mfe  be  an  infant,  her  uniting  with  her  husband,  and 
acknowledging  the  due  execution  of  the  instrument,  will  not  give 
it  effect.  Such  instrument  so  executed  is  void.  The  disability  of 
infancy  is  not  removed  by  any  of  these  statutes.  {Sanford  v.  Mc- 
Lean, 3  Paige,  117.) 

At  common  law,  the  only  mode  in  which  a  married  woman  could 
alienate  her  lands  was  by  fine  and  recovery.  {The  Albany  Fire 
Ins.  Co.  V.  Bay,  su^ora.)  These  modes  of  conveyance,  we  have 
seen,  are  abolished  in  this  state,  and  the  disabilities  of  coverture, 
with  regard  to  the  alienation  of  the  property  of  the  wife,  have  been 
greatly  modified  or  wholly  removed. 

At  common  law,  the  wife  cannot  convey  her  lands  by  deed  di- 
rectly to  her  husband;  but  she  could  indirectly  accomplish  the  same 
object,  by  uniting  in  a  deed  with  him  to  a  third  person,  who  then 
reconveyed  to  him  alone.     {Jackson  v.  Stevens,  sujora.) 


BY  CORPORATIO^T.    BY  AN  ATTORNEY.  393 

If  the  deed  be  executed  by  a  corporation,  or  by  the  attorney  of 
the  grantor,  the  attorney  in  the  one  case,  and  the  proper  officer  of 
the  corporation  in  the  other,  are  the  persons  who  may  make  the  ac- 
knowledgment. It  is  impossible  that  a  corporation  aggregate 
should  execute  or  acknowledge  a  deed  in  person.  The  officer  of 
the  corporation  intrusted  with  its  common  seal,  and  who  subscribes 
his  name  to  the  deed  as  the  evidence  that  he  is  the  person  who  has 
affixed  the  common  seal  to  the  same,  stands  also  in  the  character 
of  a  subscribing  witness  to  the  execution  of  the  deed  by  the  corpo- 
ration; and  may  be  examined  by  the  officer  taking  the  proof  to 
prove  that  the  seal  affixed  by  him  is  the  common  seal  of  the  corpo- 
ration, whose  deed  the  conveyance  or  instrument  to  which  it  is  af- 
fixed, purports  to  be.  (Lovett  v.  The  Steam  Sato  Mill  Association, 
6  Paige,  60.     Johnson  v.  Bush,  3  Barh.  Ch.  207.) 

A  deed  executed  by  an  attorney  may  be  recorded,  upon  his  ac- 
knowledgment before  the  proper  officer,  or  upon  proof  that  such 
deed  was  executed  by  him,  without  proving  the  power  under  which 
the  attorney  acted  in  executing  such  deed.  {Johnson  v.  Bush, 
sujora.) 

The  more  usual  course,  in  case  of  deeds  by  a  corporation,  is  to 
take  the  evidence  under  oath  of  the  officer  by  whom  the  corpo- 
rate seal  is  affixed,  stating  his  own  authority,  that  he  knows  the 
corporate  seal,  and  that  the  same  was  affixed  to  the  conveyance  by 
order  of  the  board  of  directors,  or  other  trustees  of  the  corporation, 
and  that  he  subscribed  his  name  thereto  as  a  witness  to  the  execu- 
tion thereof.  (Lovett  v.  Steam  Saiv  Mill  Association,  supra.) 
[See  form  in  the  Appendix.] 

The  foregoing  observations  relate  to  the  execution  of  deeds  or 
other  instruments,  by  persons  in  this  state.  If  the  grantors  be  non- 
residents, or  the  instrument  be  executed  abroad,  but  within  the 
United  States,  it  must  be  taken  before  some  one  of  the  officers 
authorized  to  take  the  proof  or  acknowledgment  of  deeds  in  such 
cases.  Those  persons  are,  the  chief  justice  and  associate  justices  of 
the  supreme  court  of  the  United  States,  district  judges  of  the  Uni- 
ted States,  the  judges  or  justices  of  the  supreme  court,  superior  or 
circuit  court  of  any  state  or  territory  within  the  United  States,  and 
the  chief  justice  or  any  associate  judge  of  the  circuit  court  of  the 
United  States  in  the  District  of  Columbia :  but  when  taken  by  such 
officer  it  must,  to  be  effectual,  be  taken  within  some  place  or  terri- 
tory to  which  the  jurisdiction  of  the  court  to  which  he  belongs  ex- 


394  ACKNOWLEDGMENT. 

tends.  (1  R.  S.  757,  §  4,  stch.  2.)  A  great  variety  of  other  officers 
abroad  are  authorized  to  take  the  proof  and  acknowledgment  of 
deeds;  in  addition  to  which  the  governor  is  authorized  to  appoint 
and  commission  officers  in  other  states  and  territories,  with  the  like 
power.  (See  these  acts  collected,  3  B.  S.  46  et  seq.  5th  ed.  See 
Aj^ipendix.) 

The  statute  also  gives  to  a  conveyance  of  her  real  estate  executed 
by  a  married  woman  not  residing  in  this  state,  when  she  joins  with 
her  husband  in  such  deed,  the  same  effect  as  if  she  were  sole;  and 
allows  it  to  be  proved  or  acknowledged  in  the  same  manner. 
(1  B.  S.  758,  §  11.)  The  same  principle  has  been  applied,  by  a 
subsequent  statute,  to  a  power  of  attorney  for  the  conveyance  of 
real  estate,  executed  by  a  non-resident  married  woman  with  her 
husband,  for  the  conveyance  of  real  estate  situated  in  this  state, 
(L.  of  1835,  ch.  275.) 

No  acknowledgment  of  any  conveyance  having  been  executed  can 
be  taken  by  any  officer,  unless  the  officer  taking  th,e  same  knows,  or 
has  satisfactory  evidence  that  the  person  making  such  acknowledg- 
ment is  the  individual  described  in  and  who  executed  such  convey- 
ance. (Id.  §  9.)  And  when  the  proof  of  a  conveyance  is  made  by  a 
subscribing  witness  thereto,  he  must  state  his  own  place  of  resi- 
dence, and  that  he  knew  the  person  described  in  and  who  executed 
such  conveyance.  And  this  proof  is  not  to  be  taken  unless  the  offi- 
cer is  personally  acquainted  with  such  subscribing  witness,  or  has 
satisfactory  evidence  that  he  is  the  same  person,  who  was  a  sub- 
scribing witness  to  such  instrument.  (Id.  §  12.  Jachson  v.  Os~ 
horn,  2  Wend.  555.     Same  v.  Gould,  7  id.  364.) 

The  officer  who  takes  the  proof  or  acknowledgment  of  any  con- 
veyance is  required  to  indorse  a  certificate  thereof  signed  by  himself, 
on  the  conveyance;  and  in  such  certificate  he  is  required  to  set  forth 
the  matters  required  to  be  done,  known  or  proved,  on  such  acknowl- 
edgment or  proof,  together  wdth  the  names  of  the  witnesses  exam- 
ined before  him,  and  their  places  of  residence,  and  the  substance  of 
the  e^adence  given  by  them.  (Id.  §  15.)  The  officer  need  not  cer- 
tify that  he  knew  the  witness  who  identified  the  subscribing  wit- 
ness; it  is  the  latter,  namely,  the  subscribing  witness,  that  the 
officer  must  know.  But  the  statute  does  not  require  the  officer  to 
have  knowledge  of  the  identifying  witness.  (Jackson  v.  Harrow, 
11  John.  434.     Same  v.  Vichory,  1  Wend.  406.) 


TENTH:  RECORDING  IN  PROPER  COUNTY.  395 

The  certificate  of  tlie  officer  is  made  by  statute  evidence  of  cer- 
tain facts,  and  it,  therefore,  requires  no  proof  of  its  genuineness 
where  on  its  face  it  appears  to  be  reguhar.  It  is  received  without 
proof  of  the  official  character  of  the  officer  granting  it  of  his  sig- 
nature, or  that  it  was  gi'anted  within  the  jurisdiction  where  he  was 
authorized  to  act.  The  evidence  is  only  prima  facie,  and  may  be 
rebutted.     {Thurman  v.  Cameron,  24  Wend.  87.) 

If  the  subscribing  witness  to  any  conveyance  be  dead,  and  it  be 
desired  to  have  the  instrument  proved  and  recorded,  it  may  be 
proved  before  any  officer  authorized  to  take  the  proof  and  acknowl- 
edoment  of  deeds,  other  than  commissioners  of  deeds  and  county 
iud-es  not  of  the  degrees  of  counsel  in  the  supreme  court.     It  can- 
not be  made  before  a  justice  of  the  peace,  who  now  takes  the  place 
of  commissioner  of  deeds.     The  proof  of  the  execution  of  the  con- 
veyance, in  such  case,  must  be  made  by  satisfactory  evidence  of  the 
death  of  all  the  witnesses  thereto,  and  of  the  handwriting  of  such 
witnesses,  or  any  one  of  them,  and  of  the  grantor;  all  which  evi- 
dence, with  the  names  and  places  of  residence  of  the  witnesses 
examined  before  him,  must  be  set  forth  by  the  officer  taking  the 
proof  in  his  certificate  of  such  proof     The  conveyance  so  proved 
and  certified  is  permitted  to  be  recorded  in  the  proper  office,  if  the 
orio-inal  deed  be  at  the  same  time  deposited  in  the  same  office,  there 
to  remain  for  the  inspection  of  all  persons  desiring  to  examine  the 
same.     (1  i?. /S'.  761,  §§  30,  31,  32.) 

10  The  tenth  and  last  circumstance  required  to  complete  the 
deed'or  conveyance  so  as  to  give  it  full  and  perfect  effect  against  all 
the  world,  is  to  record  it  in  the  county  where  the  lands  lie.  By  the 
common  law  every  deed  took  eff-ect  according  to  the  priority  of  its 
date  or  delivery.  Subsequent  purchasers  or  morgagees  were  required 
'  to  take  notice  at  their  peril  of  antecedent  conveyances.  An  unre- 
corded deed  was  always  good  against  the  grantor  and  his  heirs. 
(JacJcson  v.  West,  10  John.  466.)  And  would  be  good  against 
every  body  but  for  the  statute. 

The  whole  object  of  the  recording  acts,  says  the  chancellor,  m 
Stuyvesant  v.  Eall,  (2  Barh.  Ch.  158,)  is  to  protect  subsequent 
purchasers  and  incumbrancers  against  previous  deeds,  mortgages, 
&c  which  are  not  recorded;  and  to  deprive  the  holder  of  the  prior 
unregistered  conveyance  or  mortgage  of  the  right  which  his  priority 
would  have  given  him  at  common  law.     The  recording  of  a  deed 


396  RECORDING. 

or  mortgage,  therefore,  is  constructive  notice  only  to  those  wlio  have 
subsequently  acquired  some  interest  or  right  in  the  property  under 
the  grantor  or  mortgagor. 

It  is  true  the  language  of  the  first  section  of  the  act  is  that  every 
conveyance  not  recorded  shall  be  void  as  against  any  subsequent 
jDurchaser  in  good  faith  and  for  a  valuable  consideration,  of  the  same 
real  estate,  or  any  portion  thereof,  whose  conveyance  shall  be  first 
duly  recorded.  (1  R.  S.  756,  §  1.)  But  this,  as  was  well  remark- 
ed by  Beardsley,  J.  in  Raynor  v.  Wilson,  (6  Hill,  473,)  is  not  to 
be  taken  literally  in  favor  of  any  and  every  subsequent  purchaser 
of  the  same  real  estate,  without  regard  to  the  person  of  whom  the 
purchase  is  made.  That  would  lead  to  absurd  consequences,  and 
the  section  should  not  receive  such  an  interpretation.  It  applies  to 
successive  purchases  of  the  same  real  estate  from  the  seller,  and 
must  be  limited  to  cases  of  that  description.  This  is  plain  enough 
on  the  words  and  spirit  of  the  section  already  referred  to;  but  the 
statute  contains  another  section  which  declares,  that  "  every  grant 
shall  also  be  conclusive  as  against  subsequent  purchasers  from  such 
[i.  e.  the  same']  grantor,  or  from  his  heirs  claiming  as  such,  except 
a  subsequent  purchaser  in  good  faith  and  for  a  valuable  considera- 
tion, who  shall  acquire  a  superior  title  by  a  conveyance  that  shall 
have  been  first  duly  recorded."  (1  R.  S.  739,  §  144.)  These  sec- 
tions being  in  pari  materia,  must  be  construed  in  reference  to  each 
other;  and  they  leave  no  doubt  of  the  sense  in  which  both  are  to  be 
understood. 

The  recording  acts  protect  none  but  innocent  and  honafide  pur- 
chasers and  holders  of  real  estate.  And  none  should  be  deemed 
honafide  purchasers  who  purchase  with  knowledge  or  notice  of  a 
defect  in  the  title.  The  recording  of  a  deed  is  constructive  notice 
to  all  the  world  of  its  existence.  There  is  no  difference  between 
the  efiect  of  such  notice,  on  a  question  of  superiority  of  title,  and 
an  actual  notice,  so  far  as  respects  the  person  receiving  such  actual 
notice.     (Schutt  v.  Large,  6  Barh.  373.) 

When  any  conveyance  is  proved  or  acknowledged  before  any  judge 
of  the  county  courts,  not  of  the  degree  of  counsellor  at  law  in  the 
supreme  court,  or  before  any  commissioner  of  deeds,  while  that  of- 
fice was  in  being,  and  now  before  any  justice  of  the  peace,  it  is  not 
entitled  to  be  read  in  evidence,  or  to  be  recorded  in  any  other  county 
than  that  in  which  the  said  oflS.cer  shall  reside,  unless  in  addition 
to  the  other  requisites  there  shall  be  subjoined  to  the  certificate  of 


RECORDING— OBJECT  OF  IT.  397 

proof,  or  acknowledgment  required  by  sucli  judge  or  commissioner, 
a  certificate  under  the  hand  and  official  seal  of  the  clerk  of  the 
county,  in  which  such  officer  resides  at  the  time  of  taking  such 
proof  or  acknowledgment,  specifying  that  such  officer  was  duly  au- 
thorized to  take  the  same,  and  that  the  said  clerk  is  well  acquainted 
M-ith  the  handwriting  of  such  officer,  and  verijy  believes  that  the 
signature  to  the  said  certificate  of  proof  or  acknowledgment  is  gen- 
uine. (1  R.  S.  759,  §  18.)  The  certificate  of  the  proof  or  acknowl- 
edgment of  every  conveyance,  and  the  certificate  of  the  genuineness 
of  the  signature  of  any  judge  or  other  officer,  in  the  cases  where 
such  last  mentioned  certificate  is  required,  must  be  recorded  with 
the  conveyance  so  proved  or  acknowledged;  and  unless  the  said 
certificates  be  so  recorded,  neither  the  record  of  such  conveyance, 
nor  the  transcript  thereof,  shall  be  read  in  evidence.     (Id.  §  20.) 

In  order  that  the  transcript  of  a  deed  can  be  used  in  evidence,  it 
must  include  not  only  the  deed  but  the  certificate  of  proof  or  ac- 
knowledgment, and  the  certificate  of  genuineness  when  there  is  one. 
{Morris  v.  Keyes,  1  Hill,  540.)  The  court  can  thus  determine 
whether  the  deed  was  properly  proved  or  acknowledged,  and  prop- 
erly recorded.  If  the  proof  was  defective,  and  the  instrument  im- 
properly recorded,  it  is  not  notice  for  any  purpose,  nor  legitimate 
evidence.  It  is  only  when  it  has  been  duly  recorded,  that  the  re- 
cord or  a  transcript  is  evidence.  It  is  then  made  primary  evidence 
of  the  contents  of  the  deed.     (Clark  v.  Noxon,  5  Hill,  36.) 

In  addition  to  the  officers  before  mentioned,  who  are  authorized 
to  take  the  proof  and  acknowledgment  of  deeds,  there  are  various 
others  in  different  parts  of  the  state,  possessing  the  like  power  by 
local  and  special  statutes.  It  is  not  deemed  important  to  give  a 
reference  to  these,  as  they  are  not  of  general  interest. 

The  object  of  the  recording  laws  is  not  solely  to  affi^rd  notice  to 
subsequent  purchasers  and  incumbrancers  of  the  existence  of  the 
conveyance;  but  to  preserve  the  evidence  thereof  for  the  benefit  of 
the  parties  interested,  and  their  heirs.  Besides  the  facility  which 
they  afford  to  purchasers  and  others  to  investigate  the  title,  they 
preserve  the  evidence  of  such  title  from  the  contingency  of  loss  or 
destruction. 

It  is  weU  calculated  to  facilitate  the  search  in  the  public  records 
to  have  those  of  the  same  kind,  as  far  as  practicable,  inserted  in 
the  same  book.  A  proper  classification  is  an  economy  of  time. 
Hence  the  statute  has  provided  that  different  sets  of  books  shaU  be 


398  RECORDING.  PROPER  BOOK. 

provided  by  the  clerks  of  the  several  counties  for  the  recording  of 
deeds  and  mortgages;  in  one  of  which  sets  all  conveyances  absolute 
in  their  terms,  and  not  intended  as  mortgages,  or  as  securities  in 
the  nature  of  mortgages,  must  be  recorded;  and  in  the  other  set, 
such  mortgages  and  securities  must  be  recorded.     (1  R.  S.  756,  §  2.) 

A  deed  conveying  real  estate,  though  absolute  in  its  terms,  which 
by  any  other  instrument  in  writing  shall  appear  to  have  been  in- 
tended only  as  a  security  in  the  nature  of  a  mortgage,  is  considered 
as  a  mortgage;  and  no  advantage  can  be  derived  by  the  person  for 
whose  benefit  it  is  made,  from  the  recording  thereof,  unless  every 
writing  operating  as  a  defeasance  of  the  same,  or  explanatory  of  its 
being  designed  to  have  the  eflect  only  of  a  mortgage  or  conditional 
deed,  be  also  recorded  therewith,  and  at  the  same  time.     (Id.  §  3.) 

In  cases  of  this  kind,  both  the  deed  and  defeasance  should  be  re- 
corded in  the  book  of  mortgages.  If  the  deed  is  intended  only  as 
a  mortgage,  there  can  be  no  good  reason  why  the  terms  on  which 
it  is  defeasible  should  not  appear  on  its  face.  If,  through  inadver- 
tence, it  is  taken  as  an  absolute  deed,  the  holder  may  comply  with 
the  terms  of  the  statute,  by  making  a  written  defeasance,  specify- 
ing the  conditions  on  which  it  was  intended  to  be  given,  and  re- 
cording both  together  in  the  book  of  mortgages.  If  he  does  this 
before  the  rights  of  any  third  party  have  intervened,  he  will  be 
protected.  And  if  he  neglects  it,  he  will  only  be  in  the  same  situ- 
ation of  every  other  mortgagee  who  neglects  to  have  his  security 
recorded.  ( White  v.  Morse,  1  Paige,  554.  Day  v.  Dunham,  2 
John.  Ch.  188.  James  v.  Johnson  &  3Ioivry,  6  id.  417;  S.  C.  in 
error,  2  Coiven,  248.     Jackson  v.  Van  Valkenbergh,  8  id.  260.) 

If  a  deed  absolute  on  its  face,  but  intended  as  a  security  for  a 
debt,  be  recorded  as  a  deed,  it  is  valid  and  effectual  between  the 
parties  as  a  mortgage;  but  it  is  liable  to  be  defeated  by  a  subse- 
quent mortgage  duly  recorded.  (James  v.  Johnson,  supra.)  A 
conveyance  and  separate  defeasance  constituting  a  mortgage,  must 
be  recorded  together  as  a  mortgage,  or  they  will  be  void  as  against 
a  subsequent  bona  fide  purchaser  for  value.  {Broivn  v.  Dean,  3 
Wend.  208.)  And  if  an  absolute  deed  be  taken,  whether  the  de- 
feasance is  by  writing  or  parol,  it  must  be  recorded  as  a  mortgage, 
otherwise  it  is  not  protected  against  subsequent  bona  fide  purchasers 
or  mortgagees.  (  White  v.  3Ioore,  supra.)  When  an  absolute  deed 
is  intended  as  a  mortgage,  a  subsequent  purchaser  with  notice 


AVOIDING  A  DEED.  399 

stands  in  the  place  of  the  equitable  mortgagee.  {Williams  v. 
Thorn,  11  Paige,  459.) 

In  some  cases  where  it  is  doubtful  in  which  book  the  conveyance 
should  be  recorded,  the  provident  and  cautious  conveyancer  will  ad- 
vise that  it  be  recorded  in  both  books,  as  a  deed  and  as  a  mortgage. 

A  deed  or  mortgage  improperly  recorded,  as  where  the  proof  of 
its  execution,  or  the  acknowledgment  was  defective,  or  insufficient, 
is  not  available  as  notice.     {Frost  v.  Beekman,  1  John.  Ch.  300.) 

The  regularity  of  the  proof  or  acknowledgment  requires  that  it 
should  be  done  before  a  proper  officer.  The  statute  forbids  any 
judge  of  any  court  from  sitting  in  any  court,  in  any  cause,  in  which 
he  is  a  party,  or  in  which  he  is  interested,  or  in  which  he  would  be 
excluded  from  being  a  juror,  by  reason  of  consanguinity,  or  affinity 
to  either  of  the  parties.  (2  H.  S.  275.)  If  the  taking  the  proof  or 
acknowledgment  of  a  deed  be  a  judicial  act,  the  officer  would  be  in- 
competent to  act  if  he  stood  in  such  relation  to  the  grantees  as 
would  render  him  incompetent  as  a  juror.  This  question  has  actu- 
ally arisen  in  this  state,  and  it  has  been  decided  that  the  officer 
who  takes  the  proof  or  acknowledgment  of  a  deed  does  not  act  judi- 
cially, but  ministerially;  and  therefore  if  he  be  an  heir,  for  exam- 
ple, of  the  grantor,  he  is  competent  to  act,  {Lynde  v.  Livingston, 
8  Barb.  463;  ajirmed  on  appeal,  2  Seld.  422.) 

Section  III. 
Of  avoiding  a  Deed,  by  matter  ex  post  facto. 

It  was  resolved  in  Bigot's  case,  (11  Oo.  27  a,)  that  when  any 
deed  is  altered  in  a  material  point,  by  the  plaintiff  himself,  or  by 
any  stranger  without  the  privity  of  the  obligee,  be  it  by  interline- 
ation, addition,  rasing,  or  by  drawing  a  pen  through  a  line,  or 
through  the  midst  of  any  material  word,  that  the  deed  thereby  be- 
comes void.  The  case  before  the  court  in  which  the  decision  was 
made,  was  that  of  a  bond,  in  which  the  question  was  whether  the 
plaintiff  could,  after  such  alteration,  maintain  an  action  thereon. 
The  same  doctrine  is  laid  down  in  the  Touchstone,  page  69. 

This  doctrine  is  no  doubt  applicable  to  an  action  on  the  covenants 
in  a  deed.  On  the  principle  of  Pigot's  case,  the  party  in  whose  fa- 
vor a  covenant  was  made,  cannot  maintain  an  action  thereon  asfainst 
the  covenantor,  if  the  former  has  made  a  material  alteration  with- 
out authority,  in  the  deed  which  contains  the  covenant. 


400  ALTERATION  OF  A  DEED. 

If  a  deed  be  valid  in  its  inception  and  be  delivered  to  the  grantee, 
a  subsequent  erasure,  alteration  or  even  cancellation  of  the  instru- 
ment, will  not  reinvest  the  title  in  the  grantor.  (Nicholson  v, 
Halsey,  1  John.  Ch.  417.  Smith  v.  McGoioan,  3  Barb.  404.  Ray- 
nor  V.  Wilson,  6  Hill,  469.     Schutt  v.  Large,  6  Barh.  373.) 

If  the  erasure  be  made  by  consent  of  the  parties,  it  .does  not  in- 
validate the  deed;  and  the  fact  may  be  proved  by  any  person  cog- 
nizant of  it,  whether  he  be  the  subscribing  witness  or  not.  {Penny 
v.  Corivithe,  18  John.  499.     Woolley  v.  Constant,  4  John.  54.) 

In  commenting  on  Pigot's  case,  the  chancellor,  in  Waring  v. 
Smith,  (2  Barh.  Ch.  133,)  said  that  the  modern  and  more  sensible 
rule  is,  that  an  alteration  if  made  by  a  party  claiming  to  recover  on 
the  bond  or  instrument,  or  by  any  person  under  whom  he  claims, 
renders  the  deed  void;  but  that  an  alteration  by  a  stranger,  Avithout 
the  privity  or  consent  of  the  party  interested,  will  not  render  the 
deed  void,  when  the  contents  of  the  same,  as  it  originally  existed, 
can  be  ascertained. 

The  chancellor  also,  in  the  same  case,  takes  a  distinction  between 
deeds  which  operate  to  convey  the  title  to  property,  and  those 
which  merely  give  a  right  of  action.  For  when  the  legal  title  to 
real  estate  passes  to  the  grantee  by  the  execution  and  delivery  of  a 
deed,  a  fraudulent  alteration  of  the  deed,  by  such  grantee,  will  not 
have  the  effect  to  revest  the  title  in  the  grantor,  in  cases  where  the 
statute  of  frauds  requires  a  wi-itten  conveyance  to  transfer  the  title. 
{Doe  V.  Archbishop  of  York,  6  East,  86.  Mitler  v.  Mainwaring, 
Cro.  Car.  397.  Lewis  v.  Payn,  8  Coiven,  71.)  In  this  class  of  cases 
it  is  held  that  the  title  to  the  estate  which  was  vested  in  the  gi-antee 
by  a  genuine  and  valid  conveyance,  remains  in  the  grantee,  although 
he  destroys  or  makes  void  the  deed  itself,  by  a  forgery  or  a  volun- 
taiy  cancelment  of  the  conveyance  which  created  that  title.  But 
the  deed  itself  is  avoided  thereby;  so  that  the  grantee  cannot  re- 
cover upon  the  covenants  therein,  nor  sustain  any  suit  founded 
upon  the  deed  as  an  existing  and  valid  instrument. 

But  a  deed  is  not  destroyed  by  the  tearing  oif  of  the  seals  or 
other  cancellation  by  a  stranger,  without  the  privity  or  consent  of 
the  parties.  {Every  v.  Merivin,  6  Coioen,  360.  Bees  v.  Over- 
haugh,  id.  746.)  Nor  does  any  unauthorized  and  unratified  alter- 
ation by  a  stranger  have  that  effect.     (  Waring  v.  Smith,  sicpra.) 

In  case  an  alteration  or  erasure  appears  in  a  materal  part 
of  the  deed,  sufficient  to  avoid  it,  if  fraudulently  made,  the  prac- 


CONSTRUCTION  OP  DEEDS.  401 

tical  question  arises  as  to  the  party  upon  whom  the  burden  of  proof 
is  cast.  If  the  alteration  was  made  before  the  execution  of  the  in- 
strument, and  noted  by  the  subscribing  witness,  or  by  the  officer 
who  takes  the  acknowledgment,  it  is  conclusive  evidence  that  the 
party  so  executing  or  acknowledging  the  instrument,  with  the 
knowledge  of  the  alteration,  assented  thereto,  or  ratified  it.  {Id.) 
But  if  the  alteration  or  erasure  be  material,  and  is  not  so  no- 
ted, either  by  the  witness  or  the  officer  taking  the  acknowledg- 
ment or  the  proof,  the  party  claiming  the  benefit  of  such  apparent 
alteration,  as  part  of  the  instrument,  is  bound  to  give  some  expla- 
nation; and  the  sufficiency  of  this  explanation,  when  given,  is  for 
the  consideration  of  the  jury.  {Jackson  v.  Oshorn,  2  Wend.  555. 
Eerrich  v.  Malin,  22  id.  388.  Waring  v.  Smith,  supra.)  This 
explanation  may  be  given  by  oral  evidence  dehors  the  deed,  or  the 
explanation  may  appear  upon  the  face  of  the  deed  itself. 

The  conveyancer  should  endeavor  so  to  draw  the  instrument  that 
it  will  be  without  blemish,  after  it  is  executed.  .  If,  unfortunately, 
some  alteration  in  a  material  part  has  to  be  made,  and  the  parties 
do  not  call  for  a  re-engrossment  of  the  deed,  the  alterations  or  de- 
fects should  be  distinctly  specified  and  noted  by  the  witness  or  the 
acknowledging  officer. 

Section  IV. 

Of  the  Construction  of  Deeds. 

It  is  a  cardinal  rule  in  the  construction  of  deeds,  that  it  be  made 
on  the  entire  deed,  and  not  merely  upon  a  particular  part  of  it; 
and  therefore  every  part  of  a  deed  ought,  if  possible,  to  -take  eifect, 
and  every  word  to  operate.  A  deed,  and  especially  a  deed  poll,  is 
always  construed  most  strongly  against  the  grantor.  If  a  deed  can- 
not operate  in  the  manner  intended  by  the  parties,  the  judges  will 
endeavor  to  construe  it  in  such  a  way  as  that  it  shall  operate  m 
some  other  manner;  it  being  the  maxim  quando  quod  ago,  non 
valet  ut  ago,  valeat  quantum  valere  potest.  Per  Spencer,  Ch.  J. 
in  Jackson  v.  Blodget,  (16  John.  168  ;)  Same  v.  Myers,  (3  id.  395.) 

The  intent,  when  apparent  and  not  repugnant  to  any  rule  of  law, 
will  control  technical  terms,  for  the  intent,  and  not  the  words,  is 
the  essence  of  every  agreement.  {Per  Kent,  Ch.  J.  in  Jackson  v. 
Myers,  supra.     Same  y.  Beach,  1  John.  Cases,  402.) 

If,  however,  the  intention  be  contrary  to  the  rules  of  law,  it  is 

Will.— 26 


402  CONSTRUCTION.    AMBIGUITY. 

otlierwise.  The  rules  of  law  will  prevail  against  the  intention. 
The  example  given  to  illustrate  this  is,  if  a  person  should  grant 
land  to  a  man  and  his  heirs  for  twenty-one  years,  the  executors  of 
the  grantee,  and  not  his  heirs,  would  be  entitled  to  the  land  on  the 
death  of  the  grantee  before  the  expiration  of  the  term.  This  re- 
sults from  the  rule  of  law  that  a  term  for  years  is  a  chattel  interest 
which  goes  to  the  personal  representatives,^  and  not  to  the  heir, 
(2  B.  S.  82,  §  6.) 

A  deed  must  receive  its  legal  construction  according  to  its  lan- 
guage and  subject  matter.  (Per  Woodworth,  J.  in  Jackson  v. 
Tihhits,  9  Cowen,  250.)  The  maxim  in  the  books  is,  quoties  in 
verbis  nulla  ambiguifas,  ibi  nulla  expositio  contra  verba  fi&n^ 
da  est.  {Broom's  Max.  477.)  This  maxim  applies  as  well  to 
deeds  as  to  wills.  Too  much  stress  should  not  be  laid  upon  partic- 
ular words  when  the  intention  is  clear.  It  is  the  duty  of  the  court 
to  make  a  deed  eifective  if  possible,  litres  magis  valeat  quam 
pereaf.     (Fish  v.  Hubbard's  A  dm.  21  Wend.  654.) 

In  case  of  a  patent  ambiguity,  ambiguitas  patens,  that  is,  an 
ambiguity  which  appears  on  the  face  of  the  instrument,  no  aver- 
ment is  aUowed  to  explain  it.  Such  ambiguity,  Bacon  says,  is 
never  helped  by  averment,  and  the  reason  is,  because  the  law  will 
not  couple  and  mingle  matter  of  specialty,  which  is  of  the  higher 
account,  with  matter  of  averment,  which  is  of  inferior  account  in 
law;  for  that  were  to  make  all  deeds  hollow,  and  subject  to  aver- 
ment, and  so  in  effect,  that  to  pass  mthout  deed,  which  the  law 
appoints,  shall  not  pass  without  deed.  {Fia]%  v.  Hubbard's  Ad- 
ministrators, supra,  p.  659.) 

A  latent  ambiguity  is  such  as  is  created  by  extrinsic  proof,  and 
may  be  removed  in  the  same  way.  Ambiguitas  verborum  latens, 
verificatione  supp)letur ;  nam  quod  ex  facto  oritur  ambigmim  ver- 
ifcatione  facti  tollitur.  {Broom's  Maxims,  468.)  If  a  grant 
should  be  made  to  John  Styles  of  Saratoga,  and  it  should  be  shown 
by  extrinsic  evidence  that  there  are  two  persons  of  that  name  in  the 
same  place,  parol  evidence  would  be  admissible  to  show  which  John 
§tyles  was  intended  by  the  grantor.  Here,  then,  is  no  ambiguity 
in  the  instrument  itself,  but  the  ambiguity  is  created  by  the  proof; 
and  it  may  therefore  be  removed  in  the  same  way. 

But  suppose  the  grant  should  be  made  to  one  of  the  sons  of  J.  S., 
or  if  there  be  a  blank  left  in  the  deed  or  will,  for  the  name  of  the 
grantee  or  devisee,  it  is  not  admissible  to  prove  by  parol  what  per- 


CONSTRUCTION.    AMBIGUITY.  40a 

son  was  probably  intended  by  the  grantor  or  devisor.  In  this  latter 
case  the  ambiguity  is  patent.  It  appears  on  the  face  of  the  instru- 
ment, and  is  not  created  by  any  extrinsic  proof. 

Where  the  language  of  a  deed  will  bear  more  than  one  interpre- 
tation, looking  only  to  the  instrument,  the  court  will  look  to  the 
surrounding  circumstances  existing  when  the  contract  was  made, 
such  as  the  situation  of  the  parties  and  of  the  subject  matter  of  the 
contract.  (Per  Jeioett,  Ch.  J.  in  French  v.  Carhart,  1  Comst.  102. 
Sevich  Y,  Sears,  1  Hill,  17.) 

Where  the  words  of  an  ancient  deed  are  equivocal,  the  usage  of  . 
the  parties,  under  the  deed,  is  admissible  to  explain  it.     {Living- 
ston V.  Ten  Brock,  16  John.  14.)     But  if  the  words  be  not  ambigu- 
ous or  eG[uivocal,  evidence  of  usage  to  control  the  effect  or  operation 
of  the  deed,  is  inadmissible.     {Parsons  v.  3IiUer,  15  Wend.  561.) 

Several  instruments  of  the  same  date,  between  the  same  parties, 
and  relating  to  the  same  subject,  may  be  construed  as  parts  of  one 
assurance.  {Jackson  v.  Dunshagh,  1  John.  Cas.  91,  Stow  v. 
Tifft,  15  John.  458.) 

When  the  deed  may  enure  several  ways,  the  grantee  shall  have 
his  election  which  way  to  take  it.  An  uncertainty  shall  be  taken 
in  favor  of  the  grantee.  {Jackson  v.  Hudson,  3  John.  375.  Same 
\.  Gardner,  8  id.  394.) 

The  rule  in  the  construction  of  deeds  is,  that  if  a  general  clause 
be  followed  by  special  words  which  accord  with  the  general  clause, 
the  deed  shall  be  construed  according  to  the  special  matter;  but 
that  if  a  deed  contain  special  words,  and  conclude  with  general 
words,  the  general  as  well  as  th6  special  words  shall  stand,  for  gen- 
aralis  clausula  non  j^orrigitur  ad  ea  qucn  antea  specialiter  sunt 
comprehensa.  {Per  Kent,  Ch.  J.  in  Munroe  v.  Alaire,  2  Caines, 
327.  Altham's  case,  8  Co.  154  h.)  Thus,  where  in  an  assignment 
made  by  a  debtor,  in  trust  for  several  creditors,  it  was  expressed  to 
be  an  assignment  of  all  the  property,  goods,  chattels,  debts,  &c.  of 
the  debtor,  particularly  described  in  a  schedule  annexed  and  refer- 
red to;  it  was  held  that  this  was  not  a  general  assignment  of  all 
the  debtor's  estate,  but  was  to  be  construed  to  operate  only  on  the 
articles  specified,  (  Wilkes  v.  Ferris,  5  John.  335.)  In  this  case, 
though  the  words  in  the  first  place  were  general  and  broad  enough 
to  cover  all  the  debtor's  estate,  they  were  afterwards  limited  by  the 
special  words. 

A  recital  in  a  deed  cannot  control  the  plain  words  in  the  grant- 


404  CONSTRUCTION.     AMBIGUITY. 

ing   part   of  the  instrument.     (Euntinpton  v.  Havens,  5  John. 
Ch.23.) 

The  construction  of  a  grant  is  matter  of  law,  but  its  legal  effect, 
deducible  from  its  terms,  or  from  matter .  subsequent,  which  by 
showing  the  sense  of  the  parties,  may  authorize  a  larger  or  naiTower 
construction,  so  as  to  include  or  exclude  the  premises  in  controversy, 
is  matter  of  fact  for  the  jury  to  decide.  (Frier  v.  Van  Allen,  8 
John.  495.) 

When  the  words  of  a  deed  are  so  uncertain  that  the  intention  of 
the  parties  cannot  be  discovered,  the  deed  is  void.  This  uncertainty 
may  be  with  reference  to  the  person  of  the  grantee,  or  the  descrip- 
tion of  the  thing  granted.  An  instance  of  the  first  is,  of  a  gift  to 
A.  or  B.,  or  to  one  of  the  children  of  J.  Z.,  he  leaving  four  children: 
such  a  gift  is  void  for  uncertainty  of  the  person.  {Cruise's  Dig. 
tit  32,  ch.  20,  §  24.)  The  case  of  BoUin  v.  PicJ:eU,  (2  Hill,  552,) 
affords  an  instance  of  the  second  kind.  In  that  case  one  party 
agreed  to  convey  to  another  seventy  acres  of  land  at  twenty  dollars 
an  acre,  payably  in  a  certain  described  way.  In  an  action  on  the 
contract  it  was  held  to  be  void  for  want  of  a  description  of  the  land. 

In  relation  to  sherifi's'  deeds,  it  has  been  repeatedly  held  that  a 
deed  is  void  when  the  description  is  so  general  that  the  lands  can- 
not be  located  by  the  deed.  (Jackson  v.  Bosevelt,  13  John.  97. 
Same  v.  Be  Lancy,  Id.  537.)  So  when  the  deed  is  illegible,  or  so 
as  to  leave  it  uncertain  what  is  conveyed,  the  deed  is  inoperative. 
(Jackson  v.  Ransom,  18  John.  107.)  But  though  the  description 
be  imperfect,  if  enough  be  given  to  locate  with  reasonable  certainty 
the  premises  sought  to  be  conveyed,  it  will  be  sufficient  to  pass  the 
title.  (Dygert  v.  Pletts,  25  Wend.  402.  Jackson  v.  Parkhursf, 
4  id.  369.  Corhin  v.  Jackson,  14  id.  619.  Jackson  v.  Livingston, 
7  id.  136.) 

There  is,  in  general,  more  danger  of  error  in  the  description  of  the 
premises,  than  in  the  person  of  the  grantee.  If  in  the  description 
there  are  particulars  sufficiently  ascertained  to  designate  the  thing 
intended  to  be  granted,  the  addition  of  circumstanceg,  false  or  mis- 
taken, will  not  frustrate  the  deed.  But  where  the  description  of 
the  estate  intended  to  be  conveyed,  includes  several  particulars,  all 
of  which,  are  necessary  to  ascertain  the  estate  to  be  conveyed,  no 
estate  will  pass  except  such  as  will  agree  with  every  particular. 
(Jackson  v.  Clark,  7  John.  217.)  If  the  words  loith  the  dwelling 
house  thereon,  be  inserted  in  the  description,  wdien  in  fact  there  is 


CONSTRUCTION.    BOUNDARIES.  405 

no  dwelling  house  on  tlie*  premises  claimed  under  the  deed,  it  is 
merely  a  false  circumstance,  which  does  not  control  the  rest  of  the 
description,  or  defeat  the  grant.     (Id.) 

Land  may  he  described  hy  the  number  of  the  lot  in  a  certain  pa- 
tent, and  may  refer  to  the  ma]5  on  which  it  is  laid  down.  In  such  case 
the  whole  lot  passes,  notwithstanding  it  is  described  in  the  deed  as 
containing  a  less  number  of  acres  than  it  actually  contains.  The 
reference  to  the  number  of  acres  in  a  grant  is  generally  mere  matter 
of  description.  {Jackson  v.  Deiffendorff,  1  Caincs,  493.  3Iann 
V.  Pearson,  2  John.  37.) 

Where  the  courses  and  distances  are  given  in  a  grant,  as  well  as 
monuments,  and  the  quantity  of  land  is  given,  the  latter  is  mere 
matter  of  description  and  not  of  covenant.  {Jackson  v.  3IcCon- 
nell,  19  Wend.  175.     Root  v.  Ptiff,  3  Barb.  353.) 

Where  there  is  a  known  and  well  ascertained  place  of  beginning, 
in  the  description  in  a  deed,  that  must  govern,  and  the  grant  be 
confined  within  the  boundaries  given.  And  a  place  of  beginning 
cannot  be  varied  by  the  incidental  mention  of  it  in  a  subsequent 
patent.  {Jackson  v.  Wilkinson,  17  John.  146.  Same  v.  Wendell, 
5  Wend.  142;  affirmed  8  id.  183.) 

What  is  most  material  and  most  certain  in  the  description  of  the 
property  granted,  has  a  controlling  influence.  Thus,  a  river,  a 
known  stream,  a  spring,  or  even  a  marked  tree,  controls  both  course 
and  distance.  Courses  and  distance  must  be  varied,  and  distance 
lengthened  or  shortened  so  as  to  conform  to  the  natural  or  ascer- 
tained objects  or  bounds  called  for  by  the  grant.  {Jackson  v. 
Ccnivp,  1  Coiven,  Q(y5.  Doe  y.  Thompson,  5  id.  371.  Jackson  y. 
Frost,  Id.  346.  Same  v.  Ives,  9  id.  661.  The  People  v.  Weti- 
dell,  8  Wend.  183,  affirmdng  S.  C.  5  id.  142.) 

■  Where  the  boundary  is  a  highway  or  a  river,  unless  there  be 
some  express  words  in  the  grant  limiting  the  boundary  to  the  bank 
"of  the  river,  or  to  the  side  of  the  highway,  the  center  of  the  river 
or  the  highway  is  to  be  taken  as  the  boundary.  {Jackson  v.  Hath" 
atoay,  15  John.  447.  Jackson  v.  Louw,  12  id.  252.  Same  v. 
Halstead,  5  Goiven,  216.  Ex  parte  Jennings,  6  id,  518.  The 
People  V.  Seymour,  6  id.  579.     Luce  v.  Carlcy,  24  Wend.  451.) 

In  some  cases  the  actual  location  of  the  premises  on  the  ground, 
by  the  parties,  and  acquiescing  therein  for  a  long  period  of  time, 
will  conclude  them;  and  estop  them  from  showing  that  such  loca- 
tion was  erroneously  made.     Long  acquiescence  in  even  an  errone- 


406  PRACTICAL  LOCATION. 

oils  location  will  authorize  the  jury  to  find  that  the  plaintifi'  had 
agreed  to  a  location  different  from  his  deed;  and  whether  he  knew 
his  rights  or  not,  such  acquiescence  or  location  will  conclude  him. 
(BQckioell  V.  Adams,  7  Coiven,  761.  McCormiclc  v.  Barnum,  10 
Wend.  104.     Dihhh  v.  Rogers,  13  id.  536.) 

So  where  a  location  is  made  under  a  deed  and  survey,  and  an  un- 
disturbed possession  is  held  accordingly  for  thirty-eight  years,  it 
was  allowed  to  prevail,  though  the  survey  was  incorrect.  {Jackson 
V.  Deiffendorff,  3  John.  269.)  So  a  houndaiy  according  to  which 
the  parties  had  occupied  for  forty-one  years,  was  not  allowed  to  be 
disturbed.  (Jackson  v.  McCall,  10  id.  377.)  It  is  presumed  that 
a  much  shorter  possession,  in  analogy  to  the  statute  of  limitations, 
which  we  have  elsewhere  considered,  will  be  sufficient  to  conclude 
the  parties.  In  Jackson  v.  Widger,  7  Coioen,  723,)  an  acquies- 
cence of  twenty  years  in  the  settling  of  a  line  by  his  surveyor,  was 
held  to  conclude  the  plaintiff  from  disputing  it. 

Where  the  description  of  the  boundaries  are  somewhat  vague  and 
indefinite,  the  acts  of  the  parties,  and  of  those  claiming  under  ad- 
joining patents,  are  entitled  to  great  weight  in  the  location  of  the 
grant.     {Jackson  v.  Wood,  13  John.  346.) 

'■■■.  The  doctrine  of  a  practical  location  of  premises  does  not  rest 
wholly  on  the  principles  of  the  statute  of  limitations.  It  is  found- 
ed in  justice  and  public  policy.  It  is  intended  to  quiet  the  actual 
possession  of  parties,  and  give  peace  to  the  honest  occupants  of  their 
farms.  The  remarks  of  the  chancellor  in  Adams  v.  Rockwell,  and 
which  appear  to  have  been  concun-ed  in  by  the  court  of  errors,  are 
founded  in  wisdom  and  good  sense.  He  says  :  "  Where  there  can 
be  no  real  doubt  as  to  how  the  premises  should  be  located,  accord- 
ino-  to  certain  and  known  boundaries  described  in  the  deed,  to  es- 
tablish a  practical  location  different  therefrom,  which  shall  deprive 
the  party,  claiming  under  the  deed,  of  his  legal  rights,  there  must 
bs  either  a  location  which  has  been  acquiesced  in  for  a  sufficient 
length  of  time  to  bar  a  right  of  entry,  under  the  statute  of  limita- 
tions, in  relation  to  real  estate;  or  the  erroneous  line  must  have 
been  agreed  upon  between  the  parties  claiming  the  land  on  both 
sides  thereof;  or  the  party  whose  right  is  to  be  thus  barred  must 
have  silently  looked  on  and  seen  the  other  party  doing  acts,  or  sub- 
jecting himself  to  expenses  in  relation  to  the  land  on  the  opposite 
side  of  the  line,  which  would  be  an  injury  to  him;  and  which  he 
would  not  have  done,  if  the  line  had  not  been  so  located;  in  which 


WORDS  OP  LIMITATION.  407 

..ase,  perhaps,  a  grant  miglit  be  presumed  within  twenty  years." 
(See  also  Van  Wyclc  v.  Wright,  IS' Wetid.  157.) 

The  acquiescence,  to  be  available  against  the  party,  must  be  by 
one  sui  juris,  and  not  laboring  under  any  disability.  Thus,  a,  feme 
covert  is  not  bound  by  the  acquiescence  of  her  husband  in  au  erro- 
neous line,  dividing  lands  owned  by  her  from  adjoining  lands. 
(Bradstreet  v.  Pratt,  17  Wend.  44.)  The  same  principle  apphes 
with  greater  force  to  lunatics,  idiots  and  infants.  .? 

Section  V. 
By  what  Words  different  Estates  are  Created. 

The  rule,  at  common  law  was,  that  to  create  an  estate  in  fee  sim- 
ple, the  word  "heirs"  was  absolutely  indispensable.  {Littleton,  §  1. 
Co.  Litt.  8  h.)  Lord  Coke  says,  that  if  land  be  conveyed  to  a  man 
and  his  heir,  in  the  singular  number,  he  has  only  an  estate  for  life. 
The  doctrine  that  an  estate  in  fee  could  not  pass  without  words  of 
inheritance  was  the  former  law  of  this  state,  (Jackson  v.  Myers, 
3  John.  388.  Sayne  v.  Davenjjort,  18  id.  295;  S.  C.  affirmed  on 
error,  20  id.  537.)  But  a  conveyance  to  a  corporation,  whether 
sole  or  aggregate,  did  not  require  words  of  inheritance  to  pass  a  fee; 
but  in  a  grant  to  a  corporation  sole,  the  word  "  successors,"  is  ne- 
cessary. 

A  different  rule  prevailed  in  devises  of  real  estate.  Any  words 
indicating  an  intention  to  pass  the  fee  would  have  that  effect.  The 
word  heirs  was  not  indispensable  in  the  case  of.  a  will  as  it  was  in 
the  case  of  a  deed.  (Jackson  v.  Delany,  11  John.  365;  affirmed 
13  id.  536.     Pond  v.  Bergh,  10  Paige,  140.) 

Such  was  the  rule  of  law  in  this  state  until  the  revised  stat- 
utes took  effect  in  1830.  In  determining  the  quantity  of  interest 
which  passed  by  a  deed  executed  previous  to  that  time,  the  con- 
struction must  be  according  to  the  former  law:  one  rule  applying 
in  the  case  of  deeds,  and  a  more  lax  one  in  the  case  of  a  devise  by 
will.  The  revisers,  in  order  to  remove  this  diversity,  proposed  to 
the  legislature  to  abolish  this  distinction,  and  substantially: to  make 
the  rule  which  governed  in  the  case  of  devises,  control  also  in  the 
case  of  deeds.  The  legislature  adopted  the  suggestion,  and  enacted 
that  the  term  "  heirs,"  or  other  words  of  inheritance,  should  not  be 
requisite  to  create  or  convey  an  estate  in  fee;  and  further  enacted, 
that  every  grant  or  devise  of  real  estate,  or .  any  interest  therein, 


408  WORDS  OF  LIMITATION. 

thereafter  to  be  executed,  should  pass  all  the  estate  or  interest  of 
the  grantor  or  testator,  unless  the  intent  to  pass  a  less  estate  or  int 
terest,  should  appear  by  express  terms,  or  be  necessarily  implied  in 
the  terms  of  such  grant.     (1  R.  S.  748,  §  1.) 

In  the  construction  of  devises  the  courts  had  been  in  the  habit 
of  seeking  for  the  intention,  though  apt  words  were  not  used.  If 
enouo-h  appeared  to  show  the  object  and  design  of  the  testator,  his 
intention  would  be  carried  into  effect,  whereas  in  the  case  of  deeds 
if  the  word  "heirs"  was  omitted,  a  fee  simple  could  not  be  made  to 
pass,  though  the  grantor  conveyed  all  his  estate  to  the  grantee  for- 
ever ;  so  important  were  words  of  limitation  in  a  deed.  To  place 
both  modes  of  alienation  upon  the  same  footing,  the  legislature  at 
the  same  time  further  enacted,  that. in  the  construction  of  every  in- 
strument creating  or  conveying,  or  authorizing  the  creation  or  con- 
veyance of  any  estate  or  interest  in  lands,  it  should  bfe  the  duty  of 
courts  of  justice  to  carry  into  effect  the  intent  of  the  parties,  so  far 
as  such  intent  could  be  collected  from  the  whole  instrument  and 
was  consistent  with  the  rules  of  law.  {Id.  §  2.)  Thus,  deeds  and 
wills  are  now  placed  upon  the  same  footing,  with  respect  to  words 
of  limitation;  or  the  quantity  of  estate  intended  to  be  conveyed  or 

devised. 

This  new  rule  dispensing  with  the  word  heirs  as  essential  to  pass 
a  fee,  has  been  adopted  in  several  other  states.  It  is  in  truth  the 
rule  which  prevails  in  all  civillaw  countries,  none  of  which  it  is 
believed  insisted  on  any  particular  form  of  words  as  indispensable 
to  the  passing  of  the  entire  interest  of  the  grantor.  The  grant  to 
Alvarado,  of  a  large  domain  in  California,  which  the  latter  after- 
wards sold  to  Col.  Fremont,  was  made  according  to  the  laws  of 
Mexico  without  any  words  of  inheritance,  and  was  still  held  by  the 
supreme  court  of  the  United  States  to  carry  a  fee,  and  to  entitle 
him  to  a  patent  from  the  United  States.  {Fremont  v.  Tlie  United 
States,  17  How.  542,  545.)H-jca  fjiLt  oi  -^i  '^ 

But  though  the  rule  has  been  thus  settled  by  legislative  enact- 
ment since  1830,  still  few  deeds,  it  is  believed,  are  written  without 
the  words  of  limitation  which  were  formerly  inserted.  As  the  word 
heirs  is  as  expressive  of  the  intent  to  pass  a  fee  simple  as  any  other, 
and  probably  more  so,  it  is  still  recommended  to  all  conveyancers 
to  adhere,  in  this  respect,  to  the  ancient  form.  The  blank  deeds 
furnished  by  the  stationers  stiU  contain  those  words  when  the  de- 
sign is  to  convey  a  fee. 


WORDS  OF  LIMITATION.  409 

An  estate  in  fee  simple  will,  in  England,  pass  to  the  king  A^ithoiit 
the  words  heirs  or  snccessors;  partly,  it  is  said,  on  account  of  his 
prerogative,  and  partly  because  in  judgment  of  law  the  king  never 
dies.  {Cruise's  Dig.  Deed,  cli.  22,  §  10.)  As  the  people  in  this 
state  succeed  to  the  prerogative  of  the  king,  it  is  presumed  that  a 
deed  of  all  the  grantor's  estate  to  the  people  carries  a  fee  or  what^ 
ever  other  estate  the  grantee  had,  without  words  of  limitation. 

If  it  be  the  design  of  the  grantor,  who  is  the  owner  of  the  fee,  to 
convey  to  another  a  life  estate,  the  usual  mode  of  expressing  it  is, 
"  to  hold  to  the  said  grantee  and  his  assigns,  for  and  during  the 
term  of  his  natural  life."  If  the  intention  be  to  grant  it  for  the  life 
of  the  grantor,  or  the  life  of  a  stranger  by  name,  the  phraseology 
must  be  changed  so  as  to  express  that  intention. 

Estates  for  years  are  usually  created  in  deeds  by  the  words  "  To 
hold  to  the  said  A.  B.,  his  executors,  administrators  and  assigns, 
from,  the  day  of  the  date  hereof  for  and  during,  and  unto  thefidl 

end  and  term,  of year  thence  next  ensuring  and  fidly  to  he 

com.plete  and  ended.''  Any  other  words  expressive  of  the  intent 
will  be  equally  effectual. 

The  technical  words  for  creating  an  estate  at  will  are  "  To  hold 
to  the  said  A.  B:  at  the  luill  of  the  lessor."   ■  {Litt.  §  68.) 

With  respect  to  joint  estates,  it  was  the  rule  at  common  law,  that 
where  land  is  granted  to  two  or  more  persons,  except  husband  and 
wife,  to  hold  to  them  and  their  heirs,  or  for  the  term  of  their  lives, 
or  for  the  term  of  another's  life,  without  any  restrictive  or  explan- 
atory words;  all  the  persons  to  whom  lands  were  so  conveyed  took 
as  joint  tenants.  This  was  the  rule  in  this  state  prior  to  the  act 
of  1786.  (1  B.  L.  54,  §  6.)  That  act  as  revised  in  1830,  (1  B.  S. 
727,  §  44,)  provides  that  in  every  estate  granted  or  devised  to  two 
or  more  persons,  in  their  own  right,  shall  be  a  tenancy  in  common, 
unless  expressly  declared  to  be  in  joint  tenancy;  but  every  estate 
vested  in  executors  or  trustees  as  such,  shall  be  held  by  them  in 
joint  tenancy.  This  act  as  revised  took  effect  retrospectively;  for 
it  is  made  to  apply  as  well  to  estates  already  created  or  vested  as  to 
estates  thereafter  to  be  granted  or  devised.  But  neither  this  or  any 
otlicr  statute  affects  the  character  of  the  estate  granted  or  devised  in 
fee  to  husband  and  wife,  who  now  as  formerly  are  neither  properly 
joint  tenants  or  tenants  in  common :  for  husband  and  wife  being 
considered  as  one  person  in  law,  they  cannot  take  the  estate  by  moi^ 
eties,  but  both  are  seised  of  the  entirety  per  tout  et  non  per  my. 


410  WORDS  OP  LIMITATION". 

The  consequence  of  wliich  is,  tliat  neither  the  husband  or  the  vv'ife 
can  dispose  of  any  part  without  the  assent  of  the  other,  but  the 
whok^.  must  remain  to  the  survivor.  (2  Black.  Com.  182;  and  ante, 
.page  180.) 

At  common  h\w,  the  usual  mode  of  creating-  a  tenancy  in  com- 
mon was  to  limit  the  estate  to  two  or  more  persons,  "  equally  to  he 
divided  among  them;  they  to  take  as  teiiants  in  comimon  and  not 
as  joint  tenants."  Such  a  clause  in  a  deed  is  now  unnecessary  to 
create  a  tenancy  in  common;  for  we  have  seen  that  by  the  statute, 
if  the  estate  be  granted  or  devised  to  two  or  more  persons  in  their 
own  right,  without  any  words  of  exjilanation,  they  will  take  as  ten- 
-ants  in  common.  These  words,  however,  though  unnecessary,  will  not 
vitiate,  and  are  often  inserted  in  wills,  when  a  tenancy  in  common 
is  intended  to  be  created.  If  it  be  intended  to  create  a  joint  ten- 
ancy in  a  grant  or  devise  to  persons  in  their  own  right,  the  usual 
mode  is  to  limit  the  estate  to  two  or  more,  "  to  have  and  to  hold 
the  same,  not  in  tenancy  in  co7nmon,  hut  in  joint  tenancy." 

If  the  grant  or  devise  be  to  executors  or  trustees  as  such,  the 
statute  declares  the  nature  of  the  estate,  without  special  words  of 
restriction  or  explanation.  Nevertheless,  the  conveyancer  or  the 
framer  of  a  devise,  not  unfrequently,  for  greater  cnution,  inserts  the 
words  '^  as  joint  tenants  and  7iot  as  tenants  in  common."  These 
words,  though  unnecessary  in  such  a  case,  will  occasion  no  incon- 
venience. 

In  the  case  of  marriage  articles,  the  construction  is  founded  on 
the  apparent  intent  of  the  parties,  however  untechnically  expressed; 
and  it  is,  therefore,  more  liberal  than  in  the  case  of  deeds.  (Tivis- 
den  V.  Loch,  Amh.  663.) 

In  this  state  we  have  seen,  in  a  former  part  of  this  treatise,  that 
all  estates  tail  are  abolished;  and  that  every  estate  which  would  be 
adjudged  a  fee  tail,  according  to  the  law  of  this  state,  as  it  existed 
previous  to  the  twelfth  day  of  July,  1782,  shall  hereafter  be  ad- 
judged a  fee  simple;  and  if  no  valid  remainder  be  limited  thereon, 
shall  be  a  fee  simple  absolute.  (1  R.  S.  722,  §  3,  ante  p.  167.)  The 
words  by  which  that  estate  was  formerly  created  were  such  as  de- 
noted the  particular  kind  of  heirs  who  were  to  succeed  to  the  inher- 
itance, as  to  the  heirs  male  of  the  grantee,  or  devisee;  or  the  heirs 
female — or  the  heirs  of  the  grantee  laiofidly  hegotten  upon  his 
.present  wife,  and  the  like.  Similar  words  are  sometimes  found  in 
wills  drawn  by  persons  not  skilled  in  conveyancing,  and  it  is  scarcely 


COVENANTS  IN  DEEDS.  41 X 

necessaiy  to  add,  that  instead  of  an  estate  tail,  an  estate  in  fee  sim- 
ple is  thus  created;  and  that  the  heirs  generally,  and  not  any  par- 
ticular heirs  in  exclusion  of  others,  succeed  to  the  inheritance. 

The  forms  of  conveyances  in  the  Appendix  will  show  the  reader 
examples  of  the  several  kinds  of  estate,  and  of  the  covenants  which 
are  usually  contained  in  them,  to  which  reference  may  be  made. 

Section  VI. 
Of  the  Covenants  in  Deeds. 

A  covenant  is  an  agreement  or  consent  of  two  or  more  by  deed 
m  wi-iting,  sealed  and  delivered,  whereby  either  one  of  the  par- 
ties promises  to  the  other  that  something  is  done  already,  or  shall 
be  done  afterwards.  He  that  makes  the  covenant  is  called  the  cov- 
enantor, and  he  to  whom  it  is  made,  the  covenantee.  {Touchstone, 
160.)  In  fewer  words,  it  is  defined  by  Stephens,  in  his  commenta- 
ries, as  a  promise  by  deed.     (2  Stejjh.  Corn.  108.) 

No  particular  technical  words  are  necessary  to  make  a  covenant; 
but  any  words  which  import  an  agreement  between  the  parties  to  a 
deed,  will  suffice  for  that  purpose.  {Halht  v.-  Wylie,  3  John.  48. 
Bull  V.  Follett,  5  Coiven,  170.) 

At  common  law,  covenants  were  either  express  or  implied.  Ex- 
press covenants  were  when  the  intention  was  indicated  by  the  lan- 
guage of  the  instrument;  impjUed,  when  they  resulted  from  the 
nature  of  the  conveyance.  Thus,  though  the  words  grant,  bargain, 
sell,  alien  and  confirm,  in  a  conveyance  in  fee,  did  not  imply  a  cov- 
enant, the  words  '^dedi,"  or  ^^ I  give,"  did  imply  a  warranty  for 
the  life  of  the  grantor.  (Frost  v.  Raymond,  2  Caines,  188.  Kent 
V.  Welsh,  7  John.  258.) 

The  revisers,  in  1830,  proposed  to  continue  implied  covenants, 
and  to  define  by  legislative  enactments,  the  cases  in  which  they 
should  be  implied,  and  the  nature  of  the  covenants  that  should  be 
thus  implied.  This  enactment  they  supposed  would  relieve  the 
law  from  obscurity,  ahd  abrogate  the  principle  which  had  been  es- 
tablished, that  an  express  covenant  in  a  deed  takes  away  all  im- 
plied covenants.  {Vanderkanv.  Vanderkan, 11  John. 12'2>.')  But 
the  legislature  did  not  adopt  that  proposal,  but  coincided  with  the 
alternative  sugscestion  of  the  revisers,  and  declared  that  no  covenant 

Oct  '' 

shaU  be  implied  in  any  conveyance  of  real  estate,  whether  such  con- 
veyance contain  special  covenants  or  not.    (1  B.  S.  738,  §  140.)    The 


412  COVENANT  OF  SEISIN. 

supreme  court  has  said  that  the  language  is  imperative,  leaving  no 
room  for  construction.  It  applies  to  all  conveyances  of  real  estate, 
whether  they  he  grants  in  fee,  for  term  of  years,  or  hy  way  of 
mortgage.  {Kinneij  v.  Watts,  14  Wend.  40.  Hone  v.  Fisher,  2 
Barh.  Ch.  569.)  The  chancellor,  in  Tone  v.  Brace,  (11  Faige, 
569,)  differs  from  the  supreme  court  in  Kinney  v.  Watts,  (supra,) 
and  supposes  that  the  140th  section  of  the  revised  statutes  does 
not  extend  to  an  estate  for  years,  and,  therefore,  that  the  old  rule 
with  respect  to  implied  covenants  remains  as  to  chattel  interests. 
The  difference  hetween  the  two  courts  has  not  yet  heen  authorita- 
tively settled.  We  have  already  had  occasion  to  notice  that  the 
legislature  also  abolished,  at  the  same  time,  lineal  and  collateral 
warrantees,  with  all  their  incidents.  As  a  substitute,  they  enacted 
suitable  provisions  for  making  the  heirs  and  devisees  of  the  cove- 
nantor answerable  to  the  extent  of  the  lands  descended  or  devised 
to  them,  in  case  the  personal  assets  of  the  ancestor  proved  to  be  in- 
sufiicient  for  that  purpose.  (1  B.  S.  739,  §  141.  2  id.  109,  §  53.) 
The  lineal  and  collateral  warrantees  thus  abrogated,  are  not  the 
covenant  of  warranty  usually  inserted  in  our  deeds  at  this  day,  but 
had  their  origin  in  feudal  principles,  which  have  thus  been  succeed- 
ed by  better  remedies. 

The  covenants  which  are  usually  entered  into  by  a  vendor  seised 
in  fee,  and  who  parts  with  all  his  estate  to  his  vendee,  are  1,  that 
he  is  seised  in  fee;  2,  that  he  has  power  to  convey;  3,  for  quiet  en- 
joyment by  the  purchaser,  his  heirs  and  assigns;  4,  that  the  estate 
is  free  from  incumbrances;  5,  for  further  assurance;  and  lastly, 
that  the  vendor  will  forever  warrant  and  defend.  (2  Sugd.  Ven- 
dors,702.) 

It  is  the  duty  of  the  attorney  of  the  vendor  to  see  that  his  client 
does  not  enter  into  unusual  covenants,  without  fully  understanding 
their  nature  and  effect.  If  the  purchaser  consents  to  take  a  de- 
fective title,  relying  on  the  covenants  of  the  vendor,  this  fact  should 
be  distinctly  stated  in  the  deed. 

There  are  some  covenants  which  run  wifh  the  land,  and  some 
which  do  not,  and  are  only  obligatory  upon  the  covenantor,  and  his 
representatives. 

We  shaU  first  notice  those  which  do  not  run  with  the  land. 

1.  The  covenant  of  seisin,  if  broken  at  all,  must  be  so  at  the  time 
of  the  conveyance.  {Greenhy  v.  Wilcox,  2  John.  1.  Hamilton  v. 
Wilson,  4  id.  72.     Ahhott  v.  Allen,  14  id.  248.     Bingham  v.  Wei- 


AGAINST  INCUMBRANCES.  413 

derivax,  1  Comst  509.)  If  the  grantor  have  a  seisin  in  fact,  though 
not  in  hw,  the  covenant  is  kept;  but  if  he  has  neither  seisin  in  fact 
nor  in  1-aw,  the  covenant  is  broken  at  once.     {Foivler  v.  Poling, 

2  Barb.  300.) 

In  an  action  of  covenant  by  the  vendee  against  the  vendor,  for 
the  breach  of  this  covenant,  the  measure  of  damages  is  the  value  of 
the  land  at  the  time  of  the  sale,  and  not  of  the  eviction.  The  de- 
fendant is  liable  to  refund  the  purchase  money,  together  with  inter- 
est to  be  calculated  from  the  time  that  the  plaintiff  loses  the  mesne 
profits;  and  the  costs,  including  reasonable  counsel  fees,  which  the 
plaintiff  sustained  in  the  action  wherein  he  was  evicted;  but  not 
the  costs  of  the  suit  for  the  mesne  profits.     {Staats  v.  Ten  Eych, 

3  Caines,  111.  Pitcher  v.  Livingston,  4  John.  1.  Bennett.  Jack- 
son, 13  id.  50.)  In  an  action  of  this  kind  the  true  consideration 
may  be  shown,  and  also  that  the  whole  or  some  part  of  it  remains 
unpaid,  notwithstanding  a  different  consideration  is  expressed  in 
the  deed,  and  the  receipt  of  it  is  admitted  in  the  conveyance. 
{Bingham  v.  Weiderwax,  1  Comst.  514.) 

On  recovery  by  the  grantee  for  breach  of  the  covenant  of  seisin, 
where  he  has  been  in  the  actual  enjoyment  of  the  land  and  taken 
the  mesne  profits,  he  is  entitled  to  recover  the  consideration  money 
and  the  interest  thereon  for  six  years  only,  and  the  costs.  The 
reason  of  this  is,  that  on  a  recovery  by  the  rightful  owner  against 
him,  he  is  only  liable  for  the  mesne  profits  for  six  years,  and  hence 
his  right  to  interest  should  be  limited  to  the  same  period.  {Caulhins 
V.  Harris,  3  Caines,  324,  aiid  case  before  cited.) 

2.  The  covenant  that  the  grantor  has  power  to  convey  as  well  as 
that  against  incumbrances,  is  broken  at  the  time  of  the  conveyance, 
if  broken  at  all ;  and  therefore  does  not  run  with  the  land.  (Green- 
by  V.  Wilcox,  supra.  Hamilton  v.  Wilson,  supra.  Fowler  v. 
Poling,  supra,  Dimmick  v.  Lockwood,  10  Wend.  142.  Kelly  v. 
Tlie  Dutch  Church,  2  Hill,  105.  Webb  v.  Alexander,  7  Wend. 
281.  Beddoe's  Executors  y.  Wadsworth,  21  id.  120.)  A  covenant 
real  ceases  to  be  such  when  broken,  and  no  longer  runs  with  the 
land.  (Per  Coioen,  J.  in  21  Wend.  123,  supra.)  Hence  none  of 
the  covenants  which  are  broken  when  made  run  with  the  land. 

In  an  action  upon  a  general  covenant  for  quiet  enjoyment,  the 
plaintiff  must  aver  and  prove  that  the  person  by  whom  he  was  evict- 
ed had  a  lawful  title  to  the  property;  and  that  he  had  such  title 
before  or  at  the  time  of  the  conveyance  by  the  defendant.     (Kelly 


414  .       BROKEN  AS  SOON  AS  MADE. 

V.  The  Dutch  Church,  2  Bill,  111,  i:>e»*  Bronson,  J.)  It  must  bo 
both  a  lawful  and  a  superior  title. 

The  covenant  for  quiet  enjoyment  goes  to  the  possesBion  and  not 
to  the  title;  and  is  broken  only  by  a  lawful  entry  and  expulsion 
from,  or  some  actual  disturbance  in  the  possession.  {Korts  v.  Car- 
penter,  5  John.  120.  WMtheck  v.  Cooh,  15  id.  483.)  It  is  there- 
fore like  a  covenant  of  warranty,  which  however  defective  the  title 
may  be,  is  not  brokeu  till  the  possession  is  disturbed.  When  the 
latter  event  transpires,  with  ret;pect  either  to  the  covenant  for  quiet 
enjoyment  or  the  covenant  of  warranty,  an  action  lies  to  recover 
damages  for  the  failure  both  of  possession  and  title,  according  to  the 
extent  of  such  ftiilure.  {Beddoe's  Executors  v.  Wadsioorfh,  21 
Wend.  124.  Webb  v.  Alexander,  sujjra.  Kelly  v.  The  Dutch 
Church  of  Schenectady,  stipra)  And  this  action  can  be  brought 
only  by  the  party  whose  possession  has  been  disturlied. 

It  is  said  by  Cowen,  J.  in  Beddoe's  Ex'rs.  v.  Wadsworth,  already 
cited,  that  there  is  a  difference  in  more  respects  than  one  between 
our  ow^n  and  the  English  cases  as  to  what  shall  constitute  a  breach 
of  the  covenants  of  title,  so  as  to  take  away  the  assignable  quality. 
He  says  it  would  seem  that  in  England  a  simple  failure  of  title, 
without  eviction,  would  be  a  breach  of  the  covenants  of  quiet  en- 
joyment. The  cases  already  cited  show,  that  with  us  the  doctrine 
is  clearly  otherwise.  In  England,  too,  the  covenant  of  seisin  is  said 
to  run  with  the  land  till  actual  damages  are  sustained  by  the  breach. 
But  the  reason  assigned  for  the  decision  is  too  refined  to  be  sound. 

The  doctrine  of  the  courts  in  this  state  is,  that  where  the  cove- 
nants are  all  broken  at  the  time  they  were  made,  so  as  to  give  an 
immediate  right  of  action  to  the  covenantee,  they  do  not  run  with 
the  land,  and  consequently  the  right  of  action  does  not  pass  to  the 
assignee  of  the  covenantee.  The  covenant  of  seisin,  and  of  good 
right  to  convey  and  against  incumbrances,  all  stand  upon  the  same 
footing,  and  are  broken  at  the  instant  they  are  made,  if  they  are 
broken  at  all.  {Mitchell  v.  Warner,  5  Coinst.  497,  and  the  cases 
before  cited.) 

The  grantee  who  has  taken  a  covenant  of  seisin'  is  not  bound  to 
wait  until  evicted  before  bringing  his  action  for  the  breach  of  this 
covenant.  If  he  suspects  the  title  of  his  grantor  to  be  defective, 
he  may  commence  his  action  at  once,  subject  however  to  be  defeated 
if  the  grantor  can  show  that  he  had  title  in  himself  at  the  time  he 
conveyed  and  had  good  right  to  convey.     (Abbott  v.  Allen,  14  John. 


COVENANTS  RmiNING  WITH  THE  LAND.  415 

248.)  The  covenant  of  seisin  extends  only  to  a  title  existing  in  a 
tliird  person,  and  which  might  defeat  the  estate  granted.  {Fitch 
V.  Baldioin,  17  John,  161.)  It  is  a  breach  of  this  covenant  if  the 
covenantor  was  not  seised  of  the  entire  estate,  but  others  wer^ 
seised  of  an  undivided  portion.  (Sedgtvick  v.  HoUenbeck,  7  John, 
376.)  But  it  is  no  breach  of  it  that  the  land  conveyed  contains  $ 
less  number  of  acres  than  is  described  in  the  deed,  nor  that  it  wag 
incumbered  by  mortgages  or  judgments,  nor  that  a  portion  of  it  isi 
subject  to  the  easement  of  a  public  highway.  (Mann  v.  Pearson, 
2  John.  37.  Stannard  v.  Eldridge.,  16  id.  254.  Whitheck  v.  Cook, 
15  id.  483.)  In  these  respects  the  jmrchaser  should  protect  him- 
self by  other  and  apj^ropriate  covenants. 

The  covenant  that  the  covenantor  has  good  right  to  convey  is 
said  to  be  synonymous  with  the  covenant  of  seisin.  Of  course  the 
principles  and  practice  applicable  to  the  one,  apply  to  the  other 
also.     (Eickert  v.  Snyder,  9  Wend.  421.) 

.  So  also  with  respect  to  the  covenant  against  incumbrances,  the 
grantee  may  extinguish  them  himself  and  then  maintain  an  action 
against  the  covenantor  for  the  actual  damages;  but  where  the  in- 
cumbrance is  still  outstanding,  and  the  grantee  has  suiBfered  no  dis- 
turbance by  reason  of  it,  he  can  only  recover  nominal  damages. 

2.  With  respect  to  covenants  running  with  the  land,  it  may  be 
said  that  they  embrace  all  such  as  extend  to  the  possession  as  well 
as  the  title.  This  attribute  belongs  to  the  covenant  of  warranty, 
and  the  covenant  for  quiet  enjoyment.  (liickert  v.  Snyder,  supra.) 
A  covenant  to  renew  the  lease  at  the  end  of  the  term,  a  covenant 
not  to  erect  or  suffer  to  be  erected  any  tenement,  edifice  or  struc- 
ture, upon  a  street  or  common  owned  by  the  grantor  in  front  of  the 
premises,  and  a  covenant  by  the  lessor  to  repair  in  case  of  damage 
by  fire,  all  run  with  the  land,  and  in  the  latter  case  the  covenant 
binds  the  grantee  of  the  reversion  to  rebuild  in  case  of  a  total  de- 
struction of  the  premises.  {Piggot  v.  Mason,  1  Paige,  412.  Rut- 
gers V.  Hunter,  6  John.  Ch.  215.  Tlie  Trustees  of  Watertown  v; 
Cowen,  4  Paige,  510.     Allen  v.  Culver,  3  Denio,  284.) 

In  delivering  the  judgment  of  the  supreme  court  in  Allen  v.  Cul- 
ver, (su2)ra,)  Jewett,  J.  at  page  295,  discusses  at  large  the  subject 
of  covenants  which  run  with  the  land,  and  gives  the  following  as 
instances  of  that  class  of  covenants,  embracing  some  which  we  have 
already  mentioned,  and  others  not  yet  specified,  viz:  1.  A  covenant 
of  warranty.     (Stiydam  v.  Jones,  10  We7id.  180.     Withy  v.  Mum^ 


416  COVENANTS  WHICH  RUN  WITH  THE  LAND. 

ford^  5  Coioen,  137.  Le  Bay  De-'Chaumont  t.  Forsythe,  2  Penn. 
Mep.  507.  Wyman  v.  Ballard,  12  3Iass.  Bep.  306.  Mitchell  v. 
Warner,  5  Conn.  Bep.  497.)  2.  A  covenant  for  quiet  enjoyment. 
(MarMand  v.  Crump,  1  Dev.  d  Bat.  94.)  3.  A  covenant  that  nei- 
ther the  grantor  nor  his  heirs  shall  make  any  claim  to  the  land  con- 
veyed. (Fairbanks  v.  Williamson,  7  Greenl.  96.)  4.  A  covenant 
by  a  tenant  to  repair.  (Demarest  v.  Willard,  8  Cowen,  206.  Nor- 
man v.  Wells,  17  Wend.  148.)  5.  A  covenant  to  pay  rent.  6.  A 
covenant  not  to  erect  a  building  in  a  common  or  public  square 
owned  by  the  grantor  in  irowi  of  the  premises  conveyed.  (  Water- 
toivn  V.  Cowen,  4  Paige,  510.)  It  is  no  objection  that  the  rent  is 
a  rent  charge,  or  reserved  in  a  grant  in  fee,  with  a  clause  of  distress 
for  non-pajTnent.  It  still  runs  with  the  land,  and  payment  may  be 
enforced  against  the  jmrty  occupying  the  land,  or  the  land  itself, 
as  we  have  already  had  occasion  to  show  under  a  former  head. 
(  Van  Bensselaer  v.  Says,  19  N.  Y.  Bept.  80.  2  Sug.  on  Vendors, 
Perk.  ed.  111.  Ante,  p).  205.)  It  is  a  general  rule  that  all  cove- 
nants concerning  title  run  with  the  land,  except  such  as  are  broken 
before  the  land  passes.  (4  Kent's  Com.  473.)  Hence  a  covenant 
for  further  assurance  runs  with  the  land,  whether  the  estate  to 
which  it  relates  be  an  estate  in  fee  or  for  a  term  of  years.  {Camp- 
hell  V.  Lewis,  3  Barn.  &Ald.  392.     Sp)encer  v.  Noyes,  4  Ves.  370.) 

The  leading  authority  on  the  subject  of  covenants  running  with 
the  land  is  Sp)encer's  case,  (5  Co.  16,)  and  see  the  note  to  that  case. 
The  authorities  which  have  been  cited  are  little  more  than  a  com- 
mentary upon  it, 

A  covenant  iimning  with  the  land  has  relation  to  the  land.  If 
the  thing  to  be  done  be  merely  collateral  to  the  land,  and  does  not 
touch  or  concern  the  thing  demised  in  any  sort,  then  the  assignee  is 
not  charged.  This  was  the  etfect  of  the  2d  resolution  of  Spencer's 
case,  (supra.     Dolph  v.  White,  2  Kern.  301.) 

There  are  cases  where  the  covenant  runs  with  the  land,  which  do 
not  arise  under  the  statute.  (1  B.  S.  141,  §  23.)  That  section,  as 
modified  by  the  laws  of  1846,  ch.  274,  provides  that  the  grantees  of 
any  demised  land,  tenements,  rents  or  other  hereditaments,  or  of 
the  reversion  thereof,  the  assignee  of  the  lessor  of  any  demise  and 
the  heirs  and  personal  representatives  of  the  lessor,  gi-antee  or  as- 
signee, shall  have  the  same  remedies  by  entry,  action  or  otherwise, 
for  the  non-performance  of  any  agreement  contained  in  the  lease  so 
assigned,  or  for  the  recovery  of  any  rent,  or  for  the  doing  of  any 


FURTHER  ASSURANCE.  417 

■waste  or  other  cause  of  forfeiture,  as  their  grantor  or  lessor  had,  or 
might  have  had,  if  such  reversion  had  remained  in  such  lessor  or 
grantor.  The  subsequent  section  gives  to  the  lessees  of  any  lands, 
their  assigns  or  personal  representatives,  the  same  remedy  by  action 
or  otherwise  against  the  lessor,  his  grantees,  assignees,  or  his  or  their 
representatives,  for  the  breach  of  any  covenant  or  agreement  in 
such  lease  contained,  as  such  lessee  might  have  had  against  his  im- 
mediate lessor,  except  covenants  against  incumbrances  or  relating 
to  the  title  or  possession  of  the  premises  demised.  But  independ- 
ently of  these  provisions,  the  supreme  court  held,  in  Norman  v.  Wells, 
{supra,)  that  a  covenant  of  the  lessor  of  a  mill  with  the  lessee  and 
liis  assigns,  not  to  establish  a  rival  mill  on  the  same  stream,  runs 
with  the  land. 

With  regard  to  the  covenant  for  further  assurance,  it  is  the  duty 
of  the  covenantee,  when  he  deems  a  further  assurance  necessary  to 
devise  the  same,  and  give  notice  to  the  covenantor,  or  the  person 
bound  to  fulfill  the  covenant.  This  assurance  must  be  reasonably 
devised,  and  not  differ  from  the  nature  and  purport  of  the  original 
bargain.  The  party  to  whom  this  notice  is  given  is  entitled  to  a 
reasonable  time  to  consider  of  it;  and  he  is,  therefore,  not  in  de- 
fault and  liable  to  an  action,  until,  after  reasonable  notice,  he  neg- 
lects or  refuses  to  give  such  further  assurance.  {Miller  v.  Parson, 
9  John.  336.) 

The  question  has  sometimes  arisen  as  to  the  person  competent  to 
maintain  an  action  for  a  breach  of  a  covenant  which  runs  with  the 
land.  In  Kane  v.  Sanger,  (14  John.  89,  93,)  Spencer,  J.  intima- 
ted that  where  covenants  run  with  the  land,  if  the  land  is  assigned 
or  conveyed,  before  the  covenants  are  broken,  and  afterwards  they 
are  broken,  the  assignee  or  grantee  can  alone  bring  the  action  of 
covenant  to  recover  damages;  but  if  the  grantor  or  assignor  is 
bound  to  indemnify  the  assignee  or  grantee  against  such  breach  of 
covenants,  then  the  assignor  or  grantor  must  bring  the  action.  But 
this  dictum  of  the  learned  judge  was  shown,  by  Savage,  Ch.  J.  in 
Withy  V.  Mumford,  {sujjra,  ^j.  140,)  to  have  been  unnecessary  to  a 
decision  of  the  case  before  him,  and  unsupported  by  authority,  and 
contrary  to  the  general  principles  applicable  to  such  cases.  The 
doctrine  is  now  well  supported  that  an  assignee  with  warranty,  or 
without  warranty,  can  maintain  an  action  for  a  breach  of  the  cov- 
enant which  has  happened  after  the  assignment.  {See  also  Gar- 
lock  V.  Closs,  5  Cowen,  143,  note.  ■  Beddoe  v.  Wadsivorth,  21  Wend. 
Will.— 27 


418  COVENANTS— now  DISCHARGED. 

120.)  In  the  last  mentioned  case,-  it  was  held  that  the  covenants 
may  be  assigned  as  well  by  a  release  and  quit-claim  deed,  as  by 
deed  of  bargain  and  sale,  or  by  lease  and  release.  Even  though  the 
grantor  had  no  title  at  the  time  of  the  conveyance,  if  possession  bo 
taken  under  the  deed  by  the  grantee,  and  there  is  a  subsequent 
eviction  by  title  paramount,  the  grantor,  under  a  quit-claim  deed 
from  the  original  grantor,  can  maintain  an  action  for  the  breach  of 
the  covenant  of  warranty,  and  for  quiet  enjoyment,  (Id.)  The 
cases  before  cited  show  that  in  such  a  case  an  action  could  not  be 
maintained  for  breach  of  the  covenant  of  seisin,  because  that  was 
broken  at  the  time  it  was  made,  and  a  cause  of  action  existed  in  the 
original  covenantor  from  that  moment.  But  with  regard  to  the 
other  covenants,  those  of  warranty  and  quiet  enjoyment,  no  cause 
of  action  existed  until  the  eviction  had  taken  place. 

In  cases  where  the  covenant  passes  to  the  assignee  with  the  land, 
it  cannot  be  affected  by  the  equities  existing  between  the  original 
parties,  any  more  than  the  legal  title  to  the  land  itself.  A  cove- 
nant under  seal  cannot  be  discharged  by  a  parol  agreement  before 
breach.  {Kay  v.  Wagliorn,  1  Taunt.  427.)  The  discharge  must 
be  by  matter  of  as  high  a  nature  as  that  which  creates  the  debt  or 
duty,  {Preston  v.  Christmas,  2  Wil.  86.  Worrall  v.  Munn,  1 
Seld.  239,  per  Paige,  J.)  This  is  universally  true  where  the  ac- 
tion is  founded  upon,  or  grows  exclusively  out  of  the  deed  or  cove- 
nant. {Blake's  case,  6  Co.  43.)  Hence,  in  Suydam  v.  Jones,  (10 
Wend.  180,)  before  cited,  where  premises  were  conveyed  subject  to 
a  mortgage,  and  it  was  agreed  at  the  time  of  the  conveyance,  by 
parol,  that  the  grantee  should  assume  the  pajTuent  of  the  mortgage 
and  pay  the  grantor  only  the  difference  between  the  amount  thereof 
and  the  sum  agreed  on  as  the  consideration  of  the  conveyance,  and 
that  the  covenants  of  warranty  and  for  quiet  enjoyment  should  not 
be  considered  to  extend  to  the  mortgage,  it  was  held  that  such 
agreement  could  not  be  set  up  in  bar  to  an  action  brought  by  the 
assignee  of  the  covenantee  who  was  evicted  under  the  mortgage. 
Such  a  defense  at  law,  it  will  be  seen,  would  be  attempting  to  show 
by  parol  that  the  real  contract  was  different  from  that  expressed  in 
the  deed,  and  that  a  covenant  under  seal,  can,  before  breach,  be 
discharged  by  a  parol  agreement;  neither  of  which  can  be  done  in 
a  court  of  law. 

The  doctrine  of  this  and  the  other  cases  shows  the  importance  of 
expressing  the  whole  contract  fully  and  according  to  the  intention 


OF  THE  SEVERAL  KINDS  OF  DEEDS.  419 

of  the  parties,  in  the  instrument  itself,  and  not  leave  any  thing  to 
the  vague  recollection  of  witnesses. 

In  assigning  the  breaches  on  these  covenants,  the  pleader  must 
be  governed  by  the  nature  of  the  covenant.  It  belongs  to  a  trea- 
tise on  pleading,  rather  than  to  our  principal  subject,  to  suggest  the 
various  questions  which  will  arise  in  asserting  the  remedy.  All  the 
covenantees  must  sue,  although  they  did  not  all  sign  and  seal  the 
agreement.  {Smith  v.  Kerr,  3  Comst.  144.)  If  one  of  two  or  more 
covenantors  die,  the  action  must  be  brought  against  the  surviver. 
{Gere  v,  Clark,  6  Hill,  350.) 


CHAPTER  VI. 

OF  THE  SEVERAL  KINDS  OF  DEEDS  KNOWN  TO  THE  LAW. 

Although  in  this  state  the  mode  of  conveyance  by  fine  and  recov- 
ery, and  by  feoffment,  has  been  abolished,  and  a  strong  inclination 
has  been  manifested  to  substitute  the  grant  for  most  of  the  others, 
it  is  still  deemed  necessary  to  know  what  were  the  conveyances  at 
the  common  law,  and  what  derived  their  origin  from  the  statute 
of  uses. 

According  to  the  elementary  writers,  the  original  conveyances 
deriving  their  effect  from  the  common  law,  were  1.  Feoffment. 
2.  Gift.  3.  Grant.  4.  Lease.  5.  Exchange.  6.  Partition.  These 
were  called  original  conveyances.  The  following  were  denominated 
derivative  conveyances.  1.  Release.  2.  Confirmation.  3.  Surren- 
der. 4.  Assignment.  5.  Defeasance.  Those  conveyances  which 
owed  their  origin  to  the  statute  of  uses  were  1.  Covenant  to  stand 
seised  to  uses.  2.  Bargain  and  sale.  3.  Lease  and  release.  4.  Deed 
to  lead  or  declare  the  uses  of  other  more  direct  conveyances  ;  and 
5.  Deeds  of  revocation  of  uses. 

Though  some  of  these  modes  of  conveyance  have  become  obsolete 
even  in  England,  and  others  have  been  expressly  abolished  in  this 
state,  it  will  still  be  deemed  expedient  to  have  some  general  knowl- 
edge of  them  all.  We  shall  proceed  therefore  to  notice  briefly  some 
of  the  points  by  which  they  were  characterized. 


420  TEOFFMENT.    GIFT.    GRANT. 

Section  I. 
Of  Feoffment,  Gift  and  Grant. 

The  office  of  tlie  feoffment  was  to  convey  a  free  inheritance  to  a 
man  and  his  heirs.  The  usual  operative  words  were,  "give,  grant 
and  enfeoff,"  but  any  other  words  of  equal  import  would  be  suffi- 
cient. The  mere  signing  and  sealing  of  the  feoffment  were  in  no 
case  sufficient  to  transfer  an  estate  of  freehold,  unless  possession 
was  formally  delivered  by  the  feoffer  to  the  feoffee.  Tliis  was  call- 
ed livery  of  seisin,  without  which  a  deed  of  feoffment  only  passed 
an  estate  at  will.  There  were,  according  to  Coke,  two  kinds  of  liv- 
ery: 1.  A  livery  in  deed;  as  when  the  feoffor  takes  the  ring  of  the 
door,  or  turf  or  twig  of  the  land,  and  delivers  the  same  upon  the 
land,  to  the  feoffee  in  the  name  of  seisin  of  the  land.  2.  Livery  in 
law,  was  when  the  feoffor  said  to  the  feoffee,  being  in  \'iew  of  the 
house  or  land,  I  give  you  yonder  land,  to  you  and  your  heirs,  and, 
go  enter  into  the  same  and  take  possession  thereof  accordingly,  and 
the  feoffee  accordingly,  in  the  lifetime  of  the  feoffor,  enters;  this  is 
a  good  feoffment.     {Co.  Litt.  48  a,  and  48  h.) 

The  operation  of  a  feoffment  was  stronger  than  any  other  con- 
veyance. It  cleared  away  all  diversions,  abatements,  intrusions 
and  other  wrongful  or  defeasible  estates.  It  operated  on  the  pos- 
session, without  regard  to  the  estate  or  interest  of  the  feoffor;  so 
that  to  make  a  feoffment  good  and  valid,  nothing  was  wanting  but 
possession. 

No  person  could  make  a  valid  livery  in  deed  unless  he  had  the 
actual  possession  at  the  moment  of  such  livery;  and  a  livery  inlaw 
was  not  effectual  to  transfer  the  freehold,  until  an  actual  entry  was 
made  by  the  feoffee,  in  the  lifetime  of  the  feoffor  and  feoffee.  But 
it  is  unnecessary  to  enlarge  ujion  the  doctrine  and  the  refinements 
which  grew  up  under  this  mode  of  conveyance.  It  is  sufficient  to 
say  that  it  now  has  no  existence  in  this  state,  and  has  been  expressly 
abolished.     (1  B.  S.  738,  §  136.) 

A  gift,  as  a  mode  of  conveyance,  at  common  law,  was  properly 
applied  to  the  creation  of  an  estate  tail.  It  differed  in  nothing 
from  the  feoffment  but  in  the  nature  of  the  estate  that  passed  by  it. 
Livery  of  seisin  must  be  given  to  the  donee  to  render  it  effectual. 
The  'gift  had  the  same  relation  to  an  estate  in  fee  tail,  as  the  feoff- 


GRANT— ITS  OPERATION.  421 

ment  had  to  an  estate  in  fee  simple.  The  converting  of  estates  in 
fee  tail  into  estates  in  fee  simple,  necessarily  dispensed  with  this 
mode  of  conveyance.  Like  the  feoflfment,  therefore,  it  is  now  no 
longer  one  of  the  modes  of  conveyance  in  this  state. 

A  grant,  at  common  law,  was  properly  applicable  to  the  trans- 
fer of  incorporeal  hereditaments.  The  operative  words  were,  dedi 
et  concessi,  given  and  granted.  It  required  no  livery  of  seisin. 
None,  indeed,  could  be  given  of  an  incorporeal  hereditament. 

The  operation  of  a  grant  by  which  any  thing  already  in  existence 
is  conveyed,  was  materially  diiferent  from  that  of  a  feoffment;  for 
a  feoffment,  it  has  been  seen,  operated  immediately  on  the  posses- 
sion without  any  regard  to  the  estate  or  interest  of  the  feoffor ; 
whereas  a  grant  only  operated  on  the  estate  or  interest  of  the 
grantor,  and  would  pass  no  more  than  what  he  was  by  law  enabled 
to  convey.     (Co.  Litt.  251  a.) 

..  This  principle  has  been  adopted  by  the  revised  statutes,  which 
expressly  enact  that  no  gi-eater  estate  or  interest  shall  be  construed 
to  pass  by  any  grant  or  conveyance  thereafter  executed,  than  the 
grantor  himself  possessed  at  the  delivery  of  the  deed,  or  could  then 
lawfully  convey,  except  that  every  grant  shall  be  conclusive  as 
against  the  grantor  and  his  heirs  claiming  from  him  by  descent, 
and  as  against  subsequent  purchasers  from  such  grantor,  or  from 
his  heirs  claiming  as  such,  except  a  sulisequent  purchaser  in  good 
faith  for  a  valuable  consideration,  who  shall  acquire  a  superior  title 
by  a  conveyance  that  shall  have  been  first  duly  recorded.  {I  R.  S. 
739,  §§  143,  144.) 

It  was  at  common  law,  one  of  the  consequences  of  the  above  doc- 
trine with  respect  to  grants,  that  they  never  worked  a  forfeiture;  so 
that  if  tenant  for  life  or  years  granted  the  estate  in  fee,  it  was  no 
forfeiture,  because  nothing  passed  but  that  which  lawfully  might 
pass.  {Co.  Litt.  254  h.)  This  principle,  too,  is  adopted  by  the 
revised  statutes,  and  applied  to  any  conveyance  made  by  a  tenant 
for  life  or  years,  of  a  greater  estate  than  he  possessed,  or  could 
la^vfuUy  convey.  Such  conveyance,  it  is  enacted,  shall  not  work  a 
forfeiture  of  his  estate,  but  shall  pass  to  the  grantee  all  the  title, 
estate  or  interest  which  such  tenant  could  lawfully  convey.  (1  R.  S. 
739,  §  145.) 

Formerly,  as  a  grant  did  not  require  the  notoriety  of  a  livery  of 
seisin  to  make  it  effectual,  it  was  supposed  to  be  necessary  that  it 
should  be  accompanied  with  the  attornment  of  the  tenant,  that  is, 


422"  ATTORNMENT. 

the  consent  of  the  tenant  to  the  transfer.     The  necessity  of  an  at- 
tornment is  now  taken  away  in  England  by  statute  4  and  5  Anne, 
ch.  16,  which  was  adopted  in  this  state  at  an  early  day.     (1  11.  L. 
525,  §  25.     1  R.  S.  739,  §  146.)     But  the  payment  of  rent  to  such 
grantor,  by  his  tenant,  before  notice  of  the  grant,  is  binding  upon 
the  grantee;  and  the  tenant  is  not  liable  to  such  grantee  for  any 
breach  of  the  condition  of  the  demise,  until  he  shall  have  had  notice 
of  the  grant.     (Jd.)     This  notice  is  a  substitute  for  the  ancient 
attornment,  and  should  always  be  given  by  the  grantee  of  the  land- 
lord to  the  tenant,  in  order  that  the  latter  may  know  to  whom  the 
payment  of  his  rent  is  due.     Although  there  be  no  attornment  of 
the  tenant  in  form,  or  notice  in  writing  of  the  assignment  given, 
still  the  assignee  of  a  lease,  who  has  been  recognized  as  such  by  the 
tenant,  may  sue  in  his  own  name  for  the  rent,  notwithstanding  he 
has  no  interest  in  the  reversion.     The  assignee  of  the  rent  alone, 
without  the  reversion,  may  recover  in  his  own  name.     {Allen. y. 
Bryan,  5  Barn,  d:  Cress.  512.     Demarest  v.  Willard,  8  Cowen, 
206.      Willard  v.  Tilghman,  2  Hill,  277.)     This  was  on  the  ground 
formerly,  that  after  attornment  by  the  tenant,  the  privity  of  con- 
tract was  transferred  to  the  assignee  of  the  rent.     Attornment  is 
now  unnecessary,  but  notice  is  required  for  certain  purposes;  and 
the  consent  of  the  tenant  to  the  transfer  is  conclusively  shown  by 
his  paying  rent  to  the  assignee  of  the  lessors.     Such  payment  dis- 
penses with  evidence  of  notice.     {Moffat  v.  Smith,  4  Comst.  126.) 
As  a  grant  only  operates  on  the  estate  of  the  grantor,  and  passes 
only  such  interest  as  he  possessed  at  the  time  of  the  delivery  of  the 
grant,  if  the  statute  was  silent  on  the  subject  the  grant  would  not 
be  void  if  the  grantor  was  out  of  possession  at  the  time.     But  the 
statute  has  interposed  and  enacted  that  every  grant  of  lands  shall 
be  void  if  at  the  time  of  the  delivery  thereof  such  lands  shall  be 
in  the  actual  possession  of  a  person  claiming  under  a  title  adverse 
to  that  of  the  grantor.     (1  B.  S.  739,  §  147.      Webb  v.  Bindon,  21 
Wend.  98.     Poor  v.  Horton,  15  Barb.  485.      Vrooman  v.  Shep- 
herd, 14  id.  441.) 

We  have  seen  in  the  previous  chapter,  that  the  legislature  have 
adopted  the  grant  as  the  conveyance  of  the  fee,  or  of  a  freehold 
estate.  A  grant  is  a  deed;  and  the  circumstances  essential  to  its 
validity  have  already  been  detailed.  A  legal  grant  effectual  to  pass 
a  fee  simple,  or  any  less  estate,  may  be  created  by  few  words.  It 
is  usual,  however,  to  add  the  forms  of  conveyance  to  which  the 


LEASE.  423 

public  have  long  been  familiar,  and  to  insert  such  covenants  fur 
title  as  are  agreed  to  by  the  parties.     These  covenants  are  not  neces- 
sary to  pass  the  title.     A  conveyance  or  assurance  is  good,  without 
a  warranty,  or  personal  covenant.     {Nixon  v.  Hijserott,  5  John.  58.) 
The  statute,  it  has  been  seen,  permits  deeds  of  bargain  and  sa^ 
and  lease  and  release  still  to  be  used,  and  declares  that  they  shall 
be  deemed  grants.     (1  B.  S.  739,  §  142.)     The  law  does  not  insist 
upon  any  particular  form  of  words  to  constitute  a  grant.     Of  course 
whatever  will  constitute  a  deed  of  bargain  and  sale  will  constitute 
a  gi-ant     A  deed  merely  remising,  releasing  and  forever  quit- 
claiming to  the  grantee  and  his  heirs  and  assigns  forever,  has  been 
held  to  be  a  good  conveyance  by  way  of  bargain  and  sale  before  the 
revised  statutes,  and  is  therefore  now  a  good  grant  under  the  statute. 
(Jackson  v.  Fish,  10  John.  456.     Beddoe's  Ex'rs  v.  Wadsworth 
21  Wend.  120.)  ' 

But  while  the  law  is  thus  indulgent  in  caiTying  out  the  intention 
of  the  parties,  it  is  nevertheless  desirable  that  well  considered  forms 
of  conveyance  should  be  adopted.  Such  forms  are  the  parent  of 
security  and  peace,  while  those  which  deviate  from  established  usage 
invite  litigation.  In  compiling  the  forms  in  the  Appendix,  we 
have  sought  rather  for  such  as  have  received  the  sanction  of  time, 
than  to  amuse  the  reader  by  untried  novelties. 

Section  II. 
Of  Lease. 

The  appropriate  definition  of  a  lease  is,  that  it  is  a  contract  for 
the  possession  and  profits  of  lands  and  tenements  on  the  one  side, 
and  a  recompense  of  rent,  or  other  income,  on  the  other.  It  is  a 
conveyance  of  lands  and  tenements  to  a  person  for  life,  for  years,  or 
at  will,  in  consideration  of  a  return  of  rent,  or  other  recompense. 
It  is  always  for  a  less  time  than  the  lessor  has  in  the  premises.  If 
it  be  for  the  whole  interest  of  the  lessor,  it  is  more  properly  an  as- 
signment, or  in  the  language  of  our  statutes,  a  grant.  (2  Black 
Com.  217.) 

The  proper  words  for  creating  a  lease  are,  ''demise,  lease  and  to 
farm  ht."  But  any  other  words  which  show  the  intention  of  the 
parties  are  sufficient.  And  we  have  seen  in  the  preceding  chapter, 
that  the  whole  instrument  must  be  examined  to  ascertain  the  in- 
tent.    A  memorandum  for  a  lease  between  H.  &  W.  by  which  H. 


424  LEASE.    LETTING  LAND  ON  SHARES. 

agreed  to  let  or  lease  to  W.  (the  defendant)  for  the  term  of  four 
years,  from  &c.  for  a  certain  rent,  i)ayal)le  &c.,  and  the  said  W. 
agrees  to  take  the  said  premises  on  the  said  terms  and  conditions, 
was  held  to  be  a  lease,  and  not  merely  an  agreement  for  a  lease. 
{Sallett  V.  Wylie,  3  John.  44.) 

So  where  A.  by  articles  of  agreement  covenanted  to  let  and  hire 
to  B.  a  certain  farm  for  the  term  of  six  years,  from  the  Ist  of  April, 
1807,  to  the  1st  of  April,  1813,  on  condition,  and  in  consideration, 
that  B.  should  pay  A.  two  hundred  and  fifty  dollars  on  the  first  day 
of  April  in  each  and  every  year  during  the  term;  this  was  held  to 
be  a  lease  inpresenti,  to  commence  on  the  2d  April,  1807,  which 
was  the  evident  intention  of  the  parties ;  for  if  the  term  was  to  be 
construed  to  commence  on  the  1st  of  April,  1807,  the  lessee  w^ould 
have  to  pay  seven  years'  rent  instead  of  six;  and  in  case  of  B.'s  be- 
ing kept  out  of  possession  of  the  premises,  his  remedy  would  be 
ejectment,  under  the  law  then  in  being,  and  not  an  action  for  a 
breach  of  covenant.     (TJiornton  v.  Payne,  5  John.  74.) 

In  the  last  mentioned  case,  the  preposition  "from"  excludes  the 
day  mentioned,  as  it  did  also  in  Wilcox  v.  Wood,  (9  Wend.  346.) 
In  some  cases  it  includes  the  day  referred  to;  and  in  all  these  cases 
the  intention  controls,  where  it  can  be  gathered  from  other  parts  of 
the  instrument.  The  better  way  is,  in  all  conveyances,  to  insert 
the  word  inclusive  or  exclusive,  after  the  mention  of  the  day,  ac- 
cording as  the  parties  wish  to  have  it  construed.  This  -svill  often 
obviate  a  controversy. 

But  letting  land  upon  shares  is  not,  technically  speaking,  a  lease; 
and  the  parties  are  merely  tenants  in  common  of  the  crop.  {Cas- 
well V.  Districh,  15  Wend.  379.  Bradish  v.  Schenck,  8  John.  151.) 
So  a  person  entering  under  a  contract  for  a  deed,  is  not  a  tenant; 
nor  entitled  to  notice  to  quit,  nor  liable  to  distress,  while  that  rem- 
edy remained,  or  assumpsit  for  the  rent.  On  the  non-performance 
of  his  contract  he  was  liable  to  be  turned  out  as  a  trespasser,  and 
was,  in  that  character,  liable  for  the  mesne  profits.  (Smith  v. 
Steivart,  6  John.  46.) 

An  agreement  by  A.  and  B.,  the  latter  to  work  for  A.,  on  his 
farm,  a  year,  for  so  much,  and  to  be  supplied  with  a  house,  is  not 
a  lease,  but  creates  the  relation  of  master  and  servant.  (Haywood 
V.  Miller,  3  Hill,  90.)  So  a  contract  for  rooms  and  board  made 
with  the  keeper  of  a  hotel,  or  boarding  house  keeper,  does  not  ere- 


DURABLE  LEASE.  425 

ate  the  relation  of  landlord  and  tenant.     (  Wilson  v.  Martin,  1  De- 
nio,  602.) 

A  lease  to  A.,  his  executors,  administrators  and  assigns,  forever, 
was,  before  the  revised  statutes,  held  to  be  only  a  lease  for  life. 
(  Williams  v.  Woodard,  2  Wend.  487.)  If  the  lessor  was,  at  the 
time,  the  owner  of  the  fee,  it  is  believed,  that  under  the  pro^dsions 
of  the  revised  statutes,  the  word  forever  would  carry  the  fee,  not- 
withstandinff  the  word  heirs  was  not  inserted  as  a  word  of  limita- 
tion,  unless,  indeed,  other  parts  of  the  instrument  would  indicate 
that  only  a  Hfe  estate  was  intended  to  be  conveyed.  (1  li.  S.  748, 
§§  1  and  2.) 

Although  the  proper  definition  of  a  lease  embraces  only  such  in- 
struments of  conveyance  as  transfer  to  the  lessee  a  less  estate  than 
is  possessed  by  the  lessor,  thus  leaving  a  reversion  in  him,  yet  we 
have  seen,  in  a  preceding  chapter,  that  grants  in  fee,  reserving  an 
annual  rent,  with  clause  of  distress,  create  a  valid  rent  charge,  not- 
withstanding there  is  no  reversion  in  the  person  entitled  to  it;  and 
that  the  covenant  to  pay  such  rent  runs  with  the  land,  as  well  as 
the  condition  of  re-entry  for  its  non-payment.  (See  ante,  p.  82  d:c. 
Van  Rensselaer  v.  Hays,  5  Smith,  68-80,  2  Sug.  725,  Perkins* 
ed.  top  2'>aging  VII.)  This  species  of  conveyance  is  most  generally 
called  a  lease  in  fee,  or  durable  lease,  and  is  thus  often  denominated 
in  the  adjudged  cases  and  in  the  statutes.  {Jackson  v.  Allen,  3 
Coioen,  220.  L.  of  1805,  ch.  98,  p.  254.  1  R.  L.  364,  §  3.  \  R.  S. 
748,  §  25.)  The  law  of  1860,  ch.  396,  ouacting  that  the  act  of  1805, 
and  its  subsequent  re-enactments,  shall  not  apply  to  deeds  of  convey- 
ance in  fee  made  before  the  9th  April,  1805,  nor  to  such  deeds  there- 
after to  be  made,  does  not  impair  the  common  law  rule  on  this  sub- 
ject, nor  affect  the  usage  that  has  prevailed  in  this  state  fi'om  an 
early  period.  Nor  does  it  alter  the  name  by  which  that  species  of 
conveyance  is  commonly  called. 

With  regard  to  the  form  of  the  instrument  demising  premises 
from  one  person  to  another,  it  is  usually  an  indenture,  executed 
under  the  hand  and  seal  of  the  respective  parties,  both  parts  of 
which,  in  such  a  case,  are  deemed  originals.  (Lewis  v.  Payn,  8 
Cowen,  71.)  A  lease  for  more  than  one  year,  is  required  by  the 
statute  of  frauds,  to  be  by  deed  or  conveyance  in  writing,  subscribed 
by  the  party  creating  it.     The  same  principle  applies  to  the  crea- 


426  LEASE— COVENANTS  THEREIN. 

tion  of  estates  or  interests  in  land,  and  to  the  granting,  assigning, 
surrendering  or  declaring  the  same,  except  hy  operation  of  law,  or 
"by  last  will  and  testament.     (2  It.  S.  134,  §  6.) 

An  oral  lease  for  more  than  one  year,  though  void  by  the  statute 
of  frauds  for  the  whole  term,  is  good  for  one  year  if  the  lessee  en- 
ters, and  creates  an  estate  from  year  to  year  thereafter.  {The  Peo- 
ple V.  Bickert,  8  Cowen,  226.     Schuyler  v.  Leggett,  2  id.  660.) 

With  regard  to  the  paHies  competent  to  make  a  lease  it  may,  in 
general,  be  said  that  all  persons,  natural  or  artificial,  who  are  ca- 
pable of  being  parties  to  a  deed,  and  of  which  we  have  sufficiently 
treated  in  preceding  chapters,  may  make  and  accept  a  lease.  There 
are  also  some  persons  who  are  not  authorized  to  convey  land  in  fee, 
without  the  order  or  authority  of  some  tribunal,  who  may  neverthe- 
less demise  the  premises  of  w^hich  they  have  the  control  for  some 
limited  time,  less  than  a  fee.  This  is  the  case  with  religious  incor- 
porations under  the  general  laws;  with  committees  of  lunatics  and 
habitual  drunkards;  with  guardians,  whether  testamentary  or  ap- 
pointed. But  this  branch  of  the  subject  will  be  treated  in  a  subse- 
quent chapter.     {See  post,  ch.  7.) 

It  belongs  more  properly  to  a  treatise  on  the  law  of  landlord  and 
tenant,  to  notice  the  various  questions  which  may  arise  under  leases. 
The  limits  of  this  work  restrict  us  to  a  few  only  of  the  points  which 
should  be  particularly  regarded. 

1.  In  respect  to  the  covenants  which  may  be,  or  are  usually  in- 
serted in  leases,  we  have  already,  in  the  preceding  chapter,  brought 
to  the  notice  of  the  reader  such  of  them  as  are  usually  inserted  in 
deeds,  and  discriminated  between  'such  as  run  with  the  land  and 
such  as  are  in  gross,  or  are  obligatory  only  on  the  covenantor  or  his 
representatives.  Some  of  those  covenants  are  applicable  to  leases. 
Without  repeating  these,  but  referring  the  reader  to  the  chapter  in 
which  the  subject  is  discussed,  we  propose  now  to  treat  of  some  of 
the  covenants  usually  inserted  in  leases,  with  the  conditions,  excep- 
tions and  reservations  therein  contained. 

Covenants  are  of  two  kinds,  express  and  implied.  We  defined 
the  difference  between  them  in  a  preceding  chapter,  and  adverted 
to  the  difference  in  opinion  between  the  late  supreme  court  and  the 
late  chancellor,  on  the  question  whether  the  statute  which  directs 
that  no  covenant  shall  be  implied  in  any  conveyance  of  real  estate 
extended  to  a  conveyance  of  a  chattel  interest  or  not.  {See  page 
411.)     Without  undertaking  to  settle  this  question,  it  is  proper 


EXPRESS  AND  IMPLIED  COVENANTS.  427 

to  advert  to  a  few  sncli  cases  as  have  arisen  and  been  decided  on 
the  subject  of  implied  covenants. 

It  has  been  held  by  the  supreme  court  that  there  is  no  implied 
covenant  or  warranty  on  the  part  of  the  lessor  of  a  dwelling  house 
that  the  premises  are  tenantable.  {Cleves  v.  WiUoughhy,  7  Hill, 
83.)  The  learned  judge  who  delivered  the  opinion  in  this  case  took 
a  distinction  between  a  lease  of  a  house  for  years  and  a  demise  of 
ready  furnished  lodgings.  With  respect  to  the  quality  or  condition 
of  property,  he  said  that  the  maxim  of  caveat  emptor  applied;  and 
that,  therefore,  the  purchaser  took  the  risk  of  its  quality  and  con- 
dition unless  he  protected  himself  by  an  express  agreement  on  the 
subject.  He  mentioned  as  the  only  exception  to  that  rule  the  sale 
of  provisions  for  domestic  use;  {Van  Vranklin\.  Fonda,  12  John. 
468;)  and  a  demise  of  ready  furnished  lodgings.  {Smith  \.  Mar- 
rahle,  1  C.  '&  Mas.  479.)  To  these  he  said  the  law  implied  a  war- 
ranty that  the  former  are  wholesome,  and  the  latter  free  from 
nuisance. 

There  is  no  implied  covenant  in  a  demise  for  years  that  the  land- 
lord shall  repair.  The  tenant,  when  there  are  no  covenants  on  the 
subject,  takes  the  premises  for  better  or  worse,  and  cannot  involve 
his  landlord  in  expense  for  repairs  without  his  consent.  If  through 
default  of  repairs  a  municipal  penalty  is  incurred,  it  falls  upon  the 
tenant.  {Mumford  v.  Broton,  6  Coiven,  475.  The  Ilayor  &c.  v. 
Corliss,  2  Sandf.  301.) 

The  fact  that  none,  or  very  few  covenants,  are  ever  implied  in  a 
lease,  renders  it  expedient  that  the  parties  should  provide,  by  express 
covenant,  for  such  contingencies  as  may  reasonably  be  anticipated. 
These  express  covenants  are  extremely  numerous.  The  first  and 
most  important  is  that  for  the  payment  of  rent.  The  words  yield- 
ing and  paying,  &c.  constitute  a  covenant  for  the  payment  of  rent, 
{De  Lancy  v.  Ganong,  5  Seld.  9,)  and  this  covenant  runs  with  the 
land,  whether  the  lease  be  for  years  or  in  fee ;  and  if  it  be  inserted 
in  a  lease,  and  be  not  qualified  by  any  exception  or  condition,  it 
formerly  bound  the  tenant  to  pay  rent  during  the  continuance  of 
the  term,  notwithstanding  the  premises  were  destroyed  by  fire,  after 
the  commencement  of  the  tenancy.  {Hallett  v.  Wylie,  3  John.  44.) 
This  was  the  well  settled  doctrine  of  the  common  law,  (3  Burr. 
1638,  per  Lord  Mansfield.  Doe  v.  Sandham,  1  T.  R.  705.)  This 
doctrine  led  to  the  insertion  of  covenants  in  leases,  as  to  the  party 
who  should  be  required  to  repair  jn  such  cases,  and  to  exceptions 


428  COVENANT  TO  REBUILD, 

or  conditions  qualifying  the  covenant  to  pay  rent,  and  making  suit- 
able provision  for  this  contingency.     The  legislature,  by  the  act  of 
April  13,  1860,  ch.  345,  provided  for  some  of  the  cases  which  may 
arise.     By  that  statute  it  is  enacted,  that  the  lessees  or  occupants 
of  any  building  which  shall,  without  any  fault  or  neglect  on  tlieir 
part,  be  destroyed,  or  be  so  injured  by  the  elements,  or  any  other 
cause,  as  to  be  untenantable  and  unfit  for  occupancy,  shall  not  be 
liable  or  bound  to  pay  rent  to  the  lessors  or  owners  thereof,  after 
such  destruction  or  injury,  unless  otherwise  expressly  provided  by 
written  agreement  or  covenant.     And  the  lessees  or  occupants  may 
thereupon  quit  and  surrender  possession  of  the  leasehold  premises, 
and  of  the  land  so  leased  or  occupied.     This  is  merely  making 
provision  by  general  law  for  a  contingency  which  could  be  suffi- 
ciently guarded  against  by  proper  stipulations  in  the  lease.     In  well 
considered  leases  of  buildings  there  is  usually  a  covenant  on  the 
part  of  the  lessor,  that  in  case  the  premises  shall  be  partially  dam- 
aged by  fire,  the  same  shall  be  repaired  as  speedily  as  possible,  at 
the  expense  of  the  landlord;  that  in  case  the  damage  shall  be  so 
extensive  as  to  render  the  premises  untenantable,  the  rent  shall 
cease  until  such  time  as  the  same  shall  be  put  in  complete  repair; 
but  in  case  of  the  total  destruction  of  the  premises  by  fire  or  other- 
wise, the  rent  shall  be  paid  up  to  the  time  of  such  destruction,  and 
then  and  from  thenceforth  the  lease  shall,  at  the  option  of  the  ten- 
ant, cease  and  come  to  an  end.     [See  the  forms  in  the  Appendix.] 
The  covenants  for  rebuilding  and  repairing  run  with  the  land, 
and  are  obligatory  not  only  upon  the  lessor  but  upon  his  assigns. 
Of  course  the  landlord,  whoever  he  may  be,  is  bound  by  it.     In 
Allen  V.  Culver,  (supra,)  the  lease  contained  a  covenant  that  in  case 
of  damage  to  the  buildings  on  the  demised  premises  by  fire  rendering 
the  same  untenantable,  the  lessor  would  repair.     It  was  held  that 
the  grantee  of  the  reversion  was  bound  to  rebuild  houses  which 
were  wholly  destroyed  by  fire.     In  that  case,  too,  the  lease  embraced 
premises  on  which  there  were  several  buildings,  and  it  contained  in 
addition  to  the  covenant  last  mentioned,  a  provision  that  the  rent 
should  cease  for  such  part  of  the  buildings  as  should  be  rendered 
untenantable  on  account  of  injury  by  fire,  while  they  should  remain 
untenantable,  and  a  part  of  the  buildings  were  destroyed  by  fire, 
and  the  landlord  neglected  to  rebuild;  it  was  held  that  the  cove- 
nants to  pay  rent  and  to  repair  were  independent,  and  that  the 
lessee  was  bound  to  pay  a  proportionate  part  of  the  rent  on  account 


COVENANT  TO  REPAIR,  &o.  429 

of  the  buildings  left  uninjured,  notwithstanding  the  default  in  re- 
buikling.  The  act  of  1860,  had  it  been  in  force  at  the  time  the 
case  of  Allen  v.  Culver  arose,  would  not  have  aided  the  tenant;  for 
the  statute  extends  only  to  cases  where  the  whole  premises  are  de- 
stroyed, and  does  not  seem  to  contemplate  a  case  of  a  destruction 
of  one  out  of  several  buildings  included  in  the  same  lease,  when  tlie 
others  are  left  uninjured,  and  the  lease  provides  for  a  stojjpage  of 
the  rent  only  as  to  those  which  are  destroyed. 

The  covenant  to  keep  the  buildings  in  repair  is  usually  inserted 
in  such  form  as  to  bind  the  lessee  and  his  assigns  to  that  duty. 
And  the  latter  is  frequently  bound  by  covenant  to  yield  up  the 
premises  at  the  end  of  the  term  in  good  repair.  If  the  covenant  be 
that  the  tenant  shall  keep  the  premises  in  repair  during  the  tenn, 
and  at  the  expiration  thereof  yield  them  up  in  like  condition,  and 
the  tenant  permits  them  to  go  to  decay,  and  omits  to  make  necessary 
repairs,  the  lessor  or  his  assigns  may  bring  an  action  forthAvith,  and 
is  not  bound  to  wait  until  the  expiration  of  the  term.  If  the  cov- 
enant was  merely  to  leave  the  premises  in  good  repair,  probably  no 
action  could  be  maintained  till  the  expiration  of  the  term,  (ScMef- 
ftlin  V,  Carpenter,  15  Wend.  400.) 

Sometimes  the  lessor  binds  himself  and  his  heirs  to  pay  to  the 
tenant,  at  the  end  of  the  term,  on  his  sun-endering  the  same  in 
good  condition,  for  such  buildings  as  he  shall  have  erected  on  the 
same  premises,  or  for  such  as  may  remain  thereon  at  that  time. 
Such  a  covenant  does  not  bind  the  landlord  to  pay  for  ordinary  re- 
pairs, but  only  for  buildings  erected  by  the  tenant.  This  covenant 
runs  with  the  land,  and  enures  to  the  benefit  of  the  assignee  of  the 
lessee,  and  enables  the  latter,  at  the  end  of  the  term,  to  recover  for 
erections  made  by  a  previous  tenant.  {Lametti  v.  Anderson,  6 
Cowen,  302,      Van  Rensselaer  v.  Penniman,  6  Wend.  569.) 

When  the  lessee  covenants  to  surrender  up  the  possession  of  the 
premises  at  the  expiration  of  the  lease,  in  the  same  condition  they 
are  in  at  the  date  of  the  lease,  natural  wear  and  tear  excepted,  but 
there  is  no  covenant  to  repair  or  rebuild;  and  the  buildings  are  de- 
stroyed by  fire,  the  tenant  is  not  bound  to  put  up  new  buildings  in 
the  place  of  those  destroyed.  If  there  be,  in  such  a  case,  any  fix- 
tures attached  to,  and  forming  a  part  of,  the  demised  premises;  and 
they  become  recovered  by  the  fire,  they  do  not  thus  lose  their  iden- 
tity; but  are  the  property  of  the  landlord,  and  the  tenant  is  liable 


430  COVENANT  FOR  QUIET  ENJOYMENT. 

to  an  action  if  he  carries  them  away.  (  Warner  v.  Hitchins,  5 
Barb.  666.) 

In  some  cases  the  lessor  and  lessee  agree  for  a  valuation  of  the 
improvements  at  the  end  of  the  terra,  by  persons  to  be  nominated 
by  them.  Both  parties  must  concur  in  the  aj)pointment  of  the  ap- 
praisers to  make  it  obligatory;  and  if  the  lesKor  refuses  to  join  in 
the  aj)pointment,  the  lessee  alone  cannot  appoint  them,  and  his 
only  remedy  is  by  action  to  recover  their  value,  which  in  such  case 
must  be  estimated  by  the  jury.  {Holliday  v.  Marshall,  7  John. 
211.) 

A  covenant  to  renew  the  lease  at  the  end  of  the  term  is  a  cove- 
nant, we  have  seen,  that  runs  with  the  land ;  but  it  does  not  require 
that  the  renewed  lease  should  contain  a  similar  covenant.  {Pig got 
V.  Mason,  1  Paige,  412.)  A  covenant  to  renew  a  lease  implies  the 
same  term  and  the  same  rent,  but  it  does  not  necessarily  imply  that 
the  renewed  lease  should  contain  the  same  covenants  as  in  the  ori- 
ginal lease.  The  covenants  are  not  indispensable  to  a  lease.  And 
hence,  when  parties  stipulate  for  a  renewal  of  the  lease,  they  should 
specify  in  their  covenant  not  only  the  duration  of  the  term  and  the 
amount  of  rent,  but  also  what  covenants  should  be  contained  in  the 
renewed  lease.     {Rutgers  v.  Hunter,  6  John.  Ch.  218.) 

The  payment  of  taxes  and  other  assessments  should,  in  general, 
be  provided  for  in  the  lease.  This  burden  is  usually  assumed  by 
the  tenant,  and  it  is,  therefore,  taken  into  consideration  in  fixing 
the  amount  of  the  rent.  Sometimes  the  lessor  himself  assumes  that 
burden;  but  in  either  case,  the  lease  itself  should  contain  the  agree- 
ment of  the  parties  on  the  subject.  The  lessee's  covenant  to  pay 
assessments  runs  Avith  the  land,  and  binds  the  assignee  of  the  term. 
If  the  covenant  was  on  the  part  of  the  lessor,  the  same  consequences 
follow.  A  covenant  to  pay  all  assessments  for  which  the  premises 
shall  be  liable,  includes  an  assessment  imposed  for  opening  a  street, 
although  it  was  not  authorized  by  any  law  existing  at  the  time  of 
the  demise.  {Post  v.  Kear7iy,  2  Comst.  394.  Osioald  v.  GiJfertf 
11  John.  443.  Corporation  of  N.  Y.  v.  Cushman,  10  id.  96. 
Bleeher  v.  Ballon,  3  Wend.  263.) 

The  usual  covenant  for  quiet  enjojTuent  should  be  inserted;  at 
least  until  it  is  settled  that  such  covenant  can  be  implied  in  a  lease 
for  years,  notwithstanding  the  statute  abolishing  implied  covenants. 
{See  Kinney  v.  Watts,  supra,  and  Tone  v.  Brace,  supra.) 

A  covenant  on  the  part  of  the  lessee  not  to  assign  or  underlet  the 


COVENANTS  AGAINST  ALIENATION.  431 

whole  or  any  part  of  the  demised  premises  during  the  term  or  any 
part  thereof,  without  the  consent  in  writing  of  the  lessor  or  his  as- 
signs, is  frequently  inserted  in  leases.  If  the  lease  be  by  its  terms 
assignable  only  with  the  consent  of  the  lessor,  an  assignment  of  a 
part  of  the  premises  with  the  consent  of  the  landlord  is  not  a  sur- 
render; and  the  lessee  remains  liable  for  any  act  of  the  assignee 
which  amounts  to  a  breach  of  any  of  the  covenants  in  the  lease. 
{Jackson  v.  Broivnson,  7  John.  227.) 

To  constitute  an  assignee  of  the  lease,  the  assignment  must  be 
of  the  whole  term  and  estate,  though  it  may  be  of  but  part  of  the 
premises.  (Van  Rensselaer  v.  Gallup,  5  Denio,  454.)  One  who 
takes  a  conveyance  of  the  whole  term  in  any  part  of  the  premises, 
or  in  an  undivided  part  of  any  portion  of  the  premises,  is  an  as- 
signee, and  liable  to  a  portion  of  the  rent.  {Childs  v.  Clarh,  3 
Barh.  Ch.  52.)  The  purchaser  under  a  mortgage  of  all  the  estate 
of  a  lessee,  is  an  assignee.     (Kearney  v.  Post,  1  Sand/.  105.) 

The  covenants  in  a  lease  are  sometimes  protected  by  a  condition, 
avoiding  the  estate  and  working  a  forfeiture  in  case  of  a  breach  by 
the  tenant.  The  breach  of  such  condition  makes  the  estate  voida- 
ble at  the  election  of  the  lessor  or  his  assigns.  The  condition  of 
forfeiture  may  be  inserted  for  the  non-payment  of  rent,  or  for  any 
other  default,  or  improper  conduct  of  the  tenant.  And  an  estate 
becomes  forfeited  by  breach  of  a  condition  subsequent  by  a  grantee, 
though  the  grantee  be  an  infant  or  feme  covert.  (Norman  v. 
Wells,  17  Wend.  136.  Clark  v.  Jones,  1  Den.  516.  Garret  v. 
Scouter,  3  id.  334.) 

Covenants  and  conditions  in  restraint  of  alienation  could  at  com- 
mon law  only  be  imposed  by  persons  having  at  least  a  reversion, 
or  possibility  of  reversion,  therein.  A  resel-vation  in  a  conveyance 
in  fee,  of  a  pre-emptive  right  of  purchase  by  the  grantor  or  his 
heirs,  &c.,  and  the  reservation  by  the  grantor  of  a  right  to  a  portion 
of  the  sale  money  on  each  sale  by  the  grantee,  &c.,  are  void  as  re- 
pugnant to  the  estate  granted,  and  as  illegal  restraints  upon  the 
power  of  alienation.  These  principles  apply  as  well  to  leases  in  fee, 
reserving  rent,  as  to  absolute  conveyances.  (DePeyster  v.  Michael, 
2  Seld.  467.)  But  the  right  of  re-entry  for  non-payment  of  rent 
may  be  reserved  upon  a  conveyance  in  fee.  ( Van  Rensselaer  v. 
Ball,  5  Smith,  100.     Same  v.  Hays,  Id.  68.) 

There  are  various  other  covenants  and  conditions  inserted  in 
leases,  according  to  the  agreements  of  the  parties.     Enough  ha3 


432  WHO  MAY  MAKE  LEASES. 

been  said  on  this  brancli  of  the  subject  to  awaken  the  attention  of 
the  reader  to  the  subject.  The  precedents  in  the  Appendix  will 
exhibit  other  covenants,  and  the  circumstances  and  condition  of 
parties  will  perhaps  render  others  expedient  or  necessary. 

With  regard  to  the  duration  of  the  estate  created  by  lease,  we 
have  no  restriction  save  that  contained  in  the  14th  section  of  the 
1st  article  of  the  constitution  of  1846,  which  provides  that  no  lease 
or  grant  of  agricultural  land  for  a  longer  period  than  twelve  years 
thereafter  made,  in  which  shall  be  reserved  any  rent  or  service  of 
any  kind,  shall  be  valid.  This  restriction  is  not  applicable  to  ur- 
ban or  village  leases,  or  to  any  others  except  those  intended  for  ag- 
ricultural purposes.  The  constitution  of  1846  was  framed  during 
the  period  when  the  anti-rent  excitement,  which  prevailed  for 
many  years  in  certain  portions  of  the  state,  was  fresh  in  the  recol- 
lection of  the  delegates;  and  the  object  doubtless  was  to  prevent 
the  formation  of  long  leases  for  agricultural  purposes,  and  to  en- 
courage the  tenants  in  their  efforts  to  acquire  the  fee.  Beyond  this 
restriction,  there  is  no  legal  objection  that  will  prevent  the  owner 
of  land  in  fee  from  granting  any  lease  at  will,  or  for  years,  or  for 
life,  or  for  any  other  period  that  may  suit  the  convenience  of  the 
parties. 

A  tenant  by  the  curtesy  or  in  dower,  or  other  tenant  for  life,  can 
make  no  lease  that  will  be  valid  after  the  death  of  the  lessor.  The 
derivative  estate  must  fall  \\dth  that  out  of  which  it  was  created. 

A  tenant  for  years  may  assign  his  whole  term,  or  he  may  make  a 
lease  to  a  third  person  of  a  less  estate  than  his  own. 

The  act  of  1855,  chapter  230,  in  relation  to  conveyances  and  de- 
vises of  personal  and  real  estate  for  religious  purposes,  forbids  the 
making  of  any  grant,  conveyance,  devise  or  lease,  to  any  person  and 
his  successor  or  successors  in  any  ecclesiastical  office.  The  object 
of  the  statute  evidently  was  to  induce  all  the  religious  denomina- 
tions to  cause  themselves  to  be  incorporated  under  the  general  act, 
and  the  amendments  thereto,  so  that  the  temporalities  of  the  church 
might  be  under  the  control  of  the  people,  and  not  be  subject  ex- 
clusively to  ecclesiastical  management.  Though  the  law  is  general, 
it  affected  only  the  Roman  Catholics,  who  prefeiTed  to  retain  the 
title  of  the  property,  which  was  dedicated  to  religious  purposes,  in 
the  hands  of  their  bishop.  This  was  believed  to  be  contrary  to  the 
policy  of  our  laws. 

Guardian  in  socage  had,  at  the  common  law,  the  custody  of  the 


EXCHANGE  AND  PARTITION.  433 

land,  and  was  entitled  to  the  profits  for  tlie  benefit  of  the  heirs. 
He  might  lease  the  land,  avow  and  bring  trespass  in  liis  own  name. 
{Byrne  v.  Van  Hoesen,  5  John.  66.  Field  v.  ScUeffelin,  7  John  Ch. 
150.  Holmes  v.  Seely,  17  Wend.  75.)  On  the  death  of  the  father,  the 
mother  succeeded  as  such  guardian,  and  could  in  that  character 
enter  on  the  lands  of  the  heirs.  {Jackson  v.  De  Watts,  7  John. 
157.)  At  common  law  this  species  of  guardianship  belonged  only 
to  such  blood  relative  of  the  infant  as  could  not  by  possibility  in- 
herit from  him.  Under  the  operation  of  our  laws  of  descent,  which 
allow  both  the  father  and  mother,  in  certain  contingencies,  to  inherit 
from  the  child,  this  species  of  guardianship  has  disappeared.  But 
a  substitute  for  it  has  been  provided  by  the  revised  statutes, 
(1  R.  S.  718,  §  5.     2  id.  153,  §  20.) 

A  lease  executed  by  a  testamentary  guardian,  or  a  guardian  ap- 
pointed under  the  statute,  should  not  be  made  for  a  longer  period 
than  the  full  age  of  the  infant;  and  if  made  for  a  longer  time,  will 
be  void  for  the  excess. 

Executors  and  administrators  may  dispose  of  terms  for  years  vested 
in  them  in  right  of  the  testator  or  intestate;  and  may  lease  the 
same  for  a  less  number  of  years;  the  rent  so  reserved  will  be  assets 
in  their  hands.     {Bac.  Ahr.  Lease,  /,  7.) 

Joint  tenants  and  tenants  in  common  may  either  make  leases  of 
their  undivided  shares,  or  may  join  in  a  lease  of  the  whole.  {Id. 
No.  5.) 

All  persons,  whether  natural  or  artificial,  though  they  be  idiots, 
lunatics,  infants  or  manied  women,  are  capable  of  being  lessees. 
This  is  for  the  reason  that  a  lease  is  always  presumed  to  be  benefi- 
cial to  the  person  who  takes  it.  When  the  lessee  labors  under  dis- 
ability at  the  time  the  lease  is  made,  he  may  on  the  removal  of  the 
disability  avoid  such  lease.  A  continued  occupancy  after  the  remo- 
val of  the  disability,  would  render  the  lease  good.  {Cruise's  Dig. 
tit.  Lease,  93.) 

Section  III. 
0/  Exchange  and  Partition. 

1.  Exchange  is  a  mode  of  conveyance  not  used  in  this  state.  The 
object  can  be  better  accomplished  by  the  grant,  or  bargain  and  sale 
by  one  party  to  the  other,  of  the  parts  intended  to  be  exchanged. 

The  statute  in  relation  to  dower  seems,  however,  to  contemplate 

Will.— 28 


434  "  EXCHANGE  DEFINED. 

the  existence  of  this  form  of  alienation.  It  is  provided  that  if  a 
husband,  seised  of  an  estate  of  inheritance  in  lands,  exchanges  them 
for  other  lands,  his  widow  shall  not  have  dower  of  both,  but  shall 
make  her  election  to  be  endowed  of  the  lands  given  or  of  those  taken 
in  exchange.     (1  R.  S.  740,  §  3.) 

An  exchange  is  defined  to  be  a  mutual  grant  of  equal  interests, 
the  one  in  consideration  of  the  other.  The  estates  exchanged 
must  be  equal  in  quantity;  not  of  value,  for  that  is  immaterial,  but 
of  interest;  as  fee  simple  for  fee  simple,  a  lease  for  twenty  years  for 
a  lease  for  twenty  years,  and  the  like.  {Per  Gridley,  J.  in  Wilcox 
V.  Randall,  7  Barh.  638,  quoting  2  Bl.  Com.  323.) 

Coke  says  that  there  are  five  things  necessary  to  an  exchange : 
1.  That  the  estates  given  be  equal.  2.  That  this  word  excambium, 
(exchange,)  be  used,  which  is  so  individually  requisite,  as  it  cannot 
be  supplied  by  any  other  word,  or  described  by  any  circumlocution. 
3.  That  there  be  an  execution  by  entry  or  claim  in  the  life  of  the 
parties.  4.  That  if  it  be  of  things  that  lie  in  gi'ant,  it  must  be  by 
deed.  5.  If  the  lands  be  in  several  counties,  there  ought  to  be  a  deed 
indented,  or  if  the  things  lie  in  grant,  albeit  they  be  in  one  county. 
(Co.  Lit.  51  h.) 

In  Wilcox  V.  Randall,  {stqwa,)  the  supreme  court  held  that 
the  word  exchange,  as  used  in  the  foregoing  section  of  the  revised 
statutes  relative  to  dower,  is  to  receive  the  same  interpretation 
which  is  applied  to  it,  when  used  at  common  law,  in  reference  to 
that  species  of  conveyance;  and  therefore,  to  deprive  the  wife  of 
her  dower  in  lands  conveyed  by  her  husband,  or  to  put  her  to  an 
election,  under  the  provisions  of  the  statute,  there  must  be  a  mutual 
grant  of  equal  interests  in  the  respective  parcels  of  land,  the  one  in 
consideration  of  the  other.  In  that  case  it  was  held,  that  a  trans- 
fer of  a  mere  equitable  interest  in  75  acres  of  land,  derived  under  a 
lease  in  perpetuity,  for  11  acres  of  land  and  $700  in  other  property, 
did  not  constitute  a  legal  exchange.  {See  also  Runyan  v.  Stew^ 
art,  12  Barh.  542.) 

The  word  exchange  implied  a  warranty;  and  therefore,  if  either 
party  was  evicted  of  the  premises  taken  in  exchange,  through  de- 
fect of  the  other's  title,  he  shall  return  back  to  the  possession  of  his 
own  by  virtue  of  the  implied  warranty.  Entry  must  be  made  by 
both  parties  in  their  lifetime;  and  if  either  party  died  before  entry, 
the  exchange  was  void.     (2  Bl.  Com.  323.) 

The  revised  statutes,  we  have  already  seen,  abolished  all  lineal 


EXCHANGE.    PARTITION.  435 

and  collateral  warranties,  and  directed  also  that  no  covenant  should 
be  implied  in  any  conveyance  of  real  estate,  whether  such  convey- 
ance contain  special  covenants  or  not.  (1  R.  S.  738,  739,  §§  140, 
141.)  If  an  exchange,  in  its  common  law  sense,  can  be  made  at 
all,  it  must,  to  be  effectual,  contain  a  special  covenant  with  respect 
to  title. 

In  England  it  is  said  that  an  exchange  by  lease  and  release  is  now 
the  preferred  mode,  since  the  statute  of  uses  executes  the  possession 
instantly  upon  the  execution  of  the  deed.  With  us,  if  that  mode 
of  conveyance  be  adopted,  or  that  by  grant  or  bargain  and  sale,  no 
entry  would  be  required  and  no  covenant  implied.  (2  Bl.  Com. 
323,  notes,  Sharsivood's  ed.  Butler's  7iote  to  Co.  Litt.  271  b,  n.  1.) 
With  respect  to  a  deed  of  partition  it  may  be  observed  that  it 
was  anciently  made  in  a  deed  to  which  all  the  joint  tenants  or  ten- 
ants in  common  or  parceners  were  parties.  (See  several  forms  in 
4  Newnam's  Conveyancer,  570  et  seq.)  In  this  state  it  has  been 
repeatedly  held  that  a  parol  partition  between  tenants  in  common, 
followed  up  by  possession,  is  valid  and  will  sever  the  possession. 
(Jackson  v.  Harder,  4  John.  202.  Sa7ne  v.  Bradt,  2  Caincs,  174. 
Same  v.  Vosbvrgh,  9  John.  270.  Sa7ne  v.  Livingston,  7  Wend. 
136,  141.  Corhin  v.  Jackson,  14  id.  619.  Jackson  v.  Luquere,  5 
Coiven,  221.  Bool  v.  3Iix,  17  Wend.  119.  Bijers  v.  Wheeler,  25 
id.  434) 

It  is  more  usual  to  make  partition  by  some  instrument  in  writ- 
ing, under  seal.  When  large  tracts  of  land  were  granted,  as  was 
formerly  the  case  to  several,  the  practice  was  to  have  the  same  sur- 
veyed and  laid  out  into  lots,  regularly  numbered;  and  then,  either 
amicably  or  by  commissioners  agreed  upon,  divide  the  lots  amongst 
the  proprietors,  and  all  unite  in  a  deed  of  partition,  assigning  and 
releasing  to  each  proprietor  the  portion  belonging  to  him.  When 
partition  is  made  in  this  way,  the  parties,  after  a  lapse  of  above 
twenty  years,  will  be  concluded  by  it,  and  will  not  be  permitted  to 
show  that  the  survey  and  partition  were  erroneous.  {Jackson  v. 
Eashrouck,  3  John.  331.) 

A  mutual  grant  by  one  party  to  the  other  of  the  share  to  which 
the  latter  is  entitled,  will  convert  the  joint  estate  into  an  estate  in 
severalty.  This  is  the  preferable  mode  where  the  parties  are  few 
in  number.  Thus  if  there  be  three  parties  to  the  common  estate, 
there  must  be  a  deed  or  a  release  from  the  two  to  one.     In  a  joint 


436  DERIVATIVE  COITV'EYANCES. 

estate  held  by  two,  mutual  grants  to  each  other,  or  releases  of  the 
share  allotted  to  each,  should  be  given. 

The  mode  of  making  partition  of  lands,  tenements  and  heredita- 
ments, held  or  possessed  by  joint  tenants  or  tenants  in  common, 
when  the  parties  are  unable  to  agree,  or  any  of  them  labor  under 
disability,  is  prescribed  by  the  revised  statutes.  {Code  of  Proce- 
dure, §  448.  2  R.  S.  316.)  This  belong-s  rather  to  a  treatise  on 
the  practice  of  the  courts,  than  to  our  present  subject,  and  enough 
has  been  said  about  it  in  a  former  part  of  this  work.    {Part  1,  ch.  7.) 

Section  IY. 

Of  the  derivative  conveyances,  Release,  Confirmation,  Surrender, 
Assignment  and  Defeasance. 

The  conveyances  which  have  been  treated  in  the  three  preceding 
sections  are  the  oy^iginal  conveyances  at  common  law.  We  propose 
now  briefly  to  notice  the  above  derivative  conveyances.  Where  a 
man  has  the  right  of  property  and  another  is  in  possession  claiming 
adversely,  the  real  owner  cannot  grant  or  convey  the  land  to  a 
stranger,  but  may  pass  his  estate  in  the  land  to  the  party  thus  in 
possession,  by  an  instrument  called  a  release.  A  release  therefore 
is  a  conveyance  of  a  right  to  a  person  in  possession.  A  release  to 
a  person  out  of  possession  is  inoperative.  (Bennett  v.  hnoin,  3 
John.  363.)  It  is  said  that  a  release  may  operate  five  ways  :  1.  By 
way  of  enlarging  an  estate.  Thus,  if  he  who  has  the  remainder  in 
fee  releases  to  the  tenant  for  a  term  of  years  or  for  life,  in  possess- 
ion, and  his  heirs,  this  vests  in  the  particular  tenant  the  fee  simple. 
{Litt.  §  465.)  To  give  operation  to  this  release  as  such,  the  tenant 
must  be  in  possession  of  some  estate  for  the  release  to  operate  upon. 
2.  By  way  of  2^o.ssing  an  estate,  as  where  one  parcener  or  joint  ten- 
ant releases  to  the  other,  the  latter  becomes  seised  in  severalty  of 
the  whole.  In  these  two  cases  there  must  be  a  privity  of  estate 
between  the  releasor  and  releasee ;  that  is,  both  estates  together 
must  make  the  fee.  3.  By  way  of  passing  a  right;  as  if  a  man  be 
disseised,  and  he  who  is  disseised  releases  to  the  disseisor  all  his 
right.  This  changes  the  estate  of  the  disseisor,  which  at  first  was 
tortious,  into  a  rightful  estate.  This  release  to  be  effectual  must 
be  to  one  who  has  the  whole  right,  or  a  fee  simple.  4.  By  way  of 
extinguishment.  {Litt.  §§  479,  480.)  This  is  where  he  to  whom 
the  release  is  made  cannot  lease  that  which  is  released  to  him,  as 


RELEASE.    CONFIRMATION.    SURRENDER.  437 

where  a  release  is  made  to  the  tenant  of  the  land  of  a  rent  charo-e 
or  common  of  pasture.'     {Id.  §  480.)     5.  By  way  of  entry  and  fecrtF- 
ment,  as  if  there  be  two  joint  disseisors  and  the  disseisee  releases 
to  one  of  them,  or  becomes  sole  seised,  and  shall  keep  out  his  former 
companion.     (2  Bl.  Com.  325.) 

The  operative  words  of  a  release  are  remise,  release  and  forever 
quit-claim.  (Lift.  §  445.)  Such  a  conveyance,  merely  remisin- 
releasmg  and  quit-claiming  to  another,  his  heirs  and  assigns  for- 
ever, though  technicaUy  a  release,  has  been  held  in  this  state  to  be 
a  good  conveyance  by  way  of  bargain  and  sale,  and  sufficient  to 
pass  the  fee,  though  the  releasee  was  not  in  possession.  (Jackson 
V.  Fish,  10  John.  456.  Beddoe  v.  Wadsivorth,  21  Wend  120 
Lynch  V.  Livingston,  2  Seld.  42.)  It  is,  therefore,  under  the  re- 
vised statutes,  good  as  a  grant.  And  it  is  for  this  reason  that  a 
release  by  one  tenant  in  common  to  his  companion  will  be  good* 
because,  though  they  have  distinct  freeholds,  the  one  may  convey 
to  the  other,  which  is  well  effected  by  the  release. 

A  confirmation  bears  a  strong  resemblance  to  a  release.  It  is 
defined  by  Coke  to  be  a  conveyance  of  an  estate  or  right  in  esse, 
whereby  a  voidable  estate  is  made  sure  and  unavoidable,  or  where- 
by a  particular  estate  is  increased.  (Co.  Litt.  295  h.)  The  opera- 
tive words  of  this  conveyance  are,  according  to  Littleton,  give 
grant,  ratify,  approve  and  confirm.  (Litt.  §§  515,  531  )  A  con- 
firmation cannot  work  upon  an  estate  tliat  is  absolutely  void  An 
example  of  one  branch  of  the  definition  is,  if  lessee  for  life  should 
make  a  lease  for  thirty  years,  and  die  during  the  term:  here  the 
lease  for  thirty  years  is  voidable  by  the  reversioner.  Yet  if  he  had 
confirmed  the  estate  of  the  lessee,  in  the  lifetime  of  the  tenant  for 
lite,  the  estate  would  be  no  longer  voidable  but  sure. 

A  surrender  is  a  conveyance,  the  converse  of  a  release.  The  re- 
lease operates  by  the  greater  estate  descending  upon  the  less  The 
surrender  is  the  falling  of  the  less  estate  into  the  greater.  It  is  de- 
fined by  Coke,  to  be  a  yielding  up  of  an  estate  for  life  or  years  to 
him  that  hath  an  immediate  estate  in  reversion  or  remainder  where- 
in the  estate  for  life  or  years  may  drown  by  mutual  agreement  be- 
tween them.  The  technical  and  proper  words  of  this  conveyance 
are,  surrender  and  yield  up;"  but  any  other  form  of  words  which 
manifests  the  intention  of  the  parties,  will  operate  as  a  surrender 


438  SURRENDER. 

Formerly,  a  surrender  might  be  made  without  deed,  as  by  a  tenant 
for  life  yielding  up  the  ppssession  to  him  in  remainder  or  reversion, 
which  was  always  favored  in  law.  (Co.  Litt.  338  a.)  But  now, 
by  the  statute  of  frauds,  a  surrender,  like  other  conveyances  of  an 
estate  or  interest  in  land,  is  required  to  be  in  writing,  subscribed  by 
the  party  executing  the  same,  unless  in  cases  where  it  is  accom- 
plished by  act  or  operation  of  law.  (2  R.  S.  135,  §  6.)  An  in- 
stance of  a  surrender  by  operation  of  law  is  contained  in  Livings- 
ton V.  Potts,  (16  John.  28.)  In  that  case  it  was  held  that  where  a 
lessee  for  years,  for  life,  or  pur  auter  vie,  accepts  a  new  lease  or  a 
o-rant  in  fee  of  the  same  premises,  this,  without  any  actual  surren- 
der of  the  old  lease,  is  a  surrender  in  law,  or  an  implied  surrender 
of  it;  and  if  the  former  lease  gave  the  lessee  a  right  of  common  in 
the  other  lands  of  the  lessor,  and  no  such  right  was  granted  by  the 
second  lease,  it  was  further  held  that  the  common  was  extinguished 
by  the  surrender. 

To  make  a  surrender  good,  the  person  who  surrenders  must  be 
in  possession;  and  the  person  to  whom  the  surrender  is  made  must 
have  a  greater  estate,  immediately  in  remainder  or  reversion,  in 
which  the  estate  surrendered  may  merge.  This  is  well  illustrated 
by  the  case  of  Springstein  v.  Schermerhorn,  (12  John.  357.)  In 
that  case,  it  appeared  that  a  tract  of  400  acres  of  wood  land  was 
leased  by  the  proprietor  of  the  manor  of  Kensselaer^vick,  in  1707, 
to  A.  in  fee,  reserving  an  annual  rent,  and  granting  reasonable  es- 
tovers out  of  the  woods  of  the  manor,  &c.  In  1763,  A.  granted  to 
his  son  B.  part  of  the  premises,  with  common  of  estovers,  out  of 
any  part  of  the  wood  land  of  A.;  and  afterwards  devised  to  his  sons 
C.  and  D.  the  residue  of  the  said  tract,  who,  on  the  death  of  the 
devisor,  entered  and  made  partition.  In  1791,  an  agi-eement  was 
made  between  B.,  C.  and  D.  and  other  tenants  of  the  manor,  with 
the  then  proprietor,  by  which  the  tenants  agreed  to  surrender  or 
release  their  former  leases,  and  take  new  leases  of  the  proprietor  at 
a  certain  rent,  and  new  leases  were  accordingly  accepted,  for  their 
respective  lands,  by  B.,  C.  and  D.  It  was  held,  that  as  there  was 
no  reversion  in  the  proprietor  of  the  manor,  the  acceptance  of  new 
leases  did  not  operate  as  a  surrender  of  the  former  estate,  but  that 
the  lessees,  having  accepted  new  leases  from  the  proprietor,  in  pur- 
suance of  the  agreement,  a  release  of  the  old  was  to  be  presumed. 
And  further,  that  B.  was  thereby  estopped  from  all  claim  under 


ASSIGNMENT.  439 

the  lease  to  him;  and  that  for  these  reasons,  the  right  granted  to 
B.  to  take  estovers  from  the  other  lands  of  A.  was  gone. 

To  make  a  valid  surrender  there  must  be  a  i)rivity  of  estate  be- 
tween the  surrenderor  and  surrenderee. 

The  possession  necessary  to  enable  a  party  to  execute  a  deed  of 
surrender  need  not  be  an  actual  pedis  possessio.  A  conveyance  of 
wild  and  uncultivated  lands  gives  a  constructive  seisin  thereof  in 
deed  to  the  grantee,  and  attaches  to  him  all  the  legal  consequences 
and  remedies  incident  to  the  estate.  {Jackson  v.  Sellich,  8  John. 
262.  Same  v.  Howe,  14  id.  405.  Bradstreet  v.  Clarke,  12  Wend. 
602.     Jackson  v.  Johnson,  5  Coioen,  97.) 

An  assignment  is  properly  a  transfer  of  some  particular  estate  or 
interest  in  lands,  but  is  usually  applied  to  the  transfer  of  a  tenn 
for  years,  or  a  bond  and  mortgage,  judgment  or  other  security.  It 
differs  from  a  derivative  lease  only  in  this,  that  by  such  lease  the 
lessor  conveys  an  interest  less  than  his  own,  reserving  to  himself  a 
reversion;  whereas  in  an  assignment  the  assignor  parts  with  the 
whole  interest  in  the  thing  assigned,  and  puts  the  assignee  in  his 
place. 

The  proper  technical  words  of  an  assignment  are,  "  assign,  trans- 
fer and  set  over."  But  any  other  words  that  indicate  the  intent, 
as  give,  grant,  bargain  and  sell,  will  have  that  effect.  No  consid- 
eration is  necessary  to  support  the  assignment  of  a  term  for  years; 
for  the  payment  of  the  rent,  or  other  burdens  attending  the  estate,' 
are  sufficient  to  vest  the  estate  in  the  assignee. 

Before  the  statute  of  frauds,  chattels  real  might  be  assigned  by 
parol;  as  personal  property,  or  choses  in  action  may  be  now  by  de- 
livery only.  (Ford  v.  Stuart,  19  John.  342.  Briggs  v.  Don,  Id. 
95.  Prescott  v.  Hull,  17  id.  284.  Canfield  v.  Hunger,  12  id.  284.) 
But  the  statute  of  frauds,  which  requires  a  deed  or  note  in  writino- 
subscribed  by  the  party,  to  render  valid  the  alienation  of  an  estate 
or  interest  in  lands,  embraces  assignments  among  the  instruments 
thus  required  to  be  in  writing.     (2  R.  S.  135,  §  6.) 

The  lessor  may  assign  the  rent  without  the  reversion.  (JDema^ 
rest  V.  Willard,  8  Cowen,  206.) 

With  some  exceptions  created  by  the  statute  or  the  agreement 
of  the  parties,  every  estate  and  interest  in  lands  and  tenements 
may  be  assigned;  and  this  is  applicable  also  to  an  estate  in  incor- 
poreal hereditaments,  as  rents,  &c.     Thus,  by  the  statute  relative 


440  DEFEASANCE. 

to  uses  and  trusts,  section  63,  no  person  beneficially  interested  in  a 
trust  for  the  receipt  of  the  rents  and  i)rofits  of  lands,  can  assijrn,  or 
in  any  manner  dispose  of  such  interest;  but  the  rights  and  interests 
of  every  person  for  whose  benefit  a  trust  for  the  payment  of  a  sum 
in  gross  is  created,  are  assignable.  Enough  has  been  said  on  this 
subject  in  the  chapter  on  trusts. 

The  beneficial  interest  of  a  cestui  que  trust  in  the  income  of  a 
fund  for  the  support  and  maintenance,  under  a  valid  trust,  which 
would  have  been  invalid  if  created  after  the  revised  statutes,  is 
transferrible  by  him,  but  the  beneficial  interest  of  a  cestui  que  trust 
in  rents  and  profits  is  inalienable  by  statute.  {Bryan  v.  Knicker- 
hacker,  1  Barb.  Ch.  409.     Wood  v.  Wood,  5  Pairje,  596.) 

A  naked  power  is  not  assignable,  but  a  power  coupled  with  an 
mterest  may  be  assigned.  {Osgood  v.  Franklin^  2  John.  Ch.  1. 
14  John.  527.) 

A  defeasance  is  a  collateral  deed  made  at  the  same  time  with  a 
grant  or  other  legal  conveyance,  containing  certain  conditions,  upon 
the  performance  of  which  the  estate  created  by  such  deed  may  be 
defeated.  The  difference  between  a  condition  and  a  defeasance  is 
that  the  first  is  contained  in  the  deed,  and  the  last  in  a  separate 
deed,  generally  executed  at  the  same  time.  "We  have  seen  in  an- 
other place  that  the  defeasance  need  not  be  executed  at  the  same 
time  as  the  deed,  but  may  be  made  at  a  subsequent  period.  And 
where  a  deed  has  been  by  mistake  made  absolute  in  its  terms,  when 
intended  to  have  been  a  mortgage,  that  a  defeasance  subsequently 
executed  will  be  effectual  to  correct  the  error.  {Dunham  v.  Day, 
2  John.  Ch.  182.     15  John.  555.) 

A  vnriting  to  operate  as  a  defeasance  to  a  deed  must  be  of  as  high 
a  nature,  and  must  therefore  be  under  seal.  {Coke's  Litt.  236  h. 
Kelleran  v.  Brown,  4  Mass.  Rep.  443.  Flagg  v.  Mann,  14  Pick. 
479.    Eaton  v.  Green,  22  id.  530.) 

Section  V. 
Of  the  Conveyances  which  owe  their  Origin  to  the  Statute  of  Uses. 

We  mentioned  in  the  introduction  of  this  chapter,  that  there 
were  five  of  these  instruments,  which  were  derived  from  the  statute 
of  uses. 

1.  The  covenant  to  stand  seised  to  uses.    This  was  a  voluntary  con- 


BARGAIN  AND  SALE.  441 

vej'ance  entered  into  in  consideration  of  marriage.  It  was  only 
made  use  of  between  near  relations  upon  consideration  either  of 
marriage  or  blood.  If  made  upon  a  pecuniary  consideration,  it  has 
been  upheld  as  a  bargain  and  sale.  This  conveyance  is  obsolete  in 
England,  and  probably  does  not  exist  at  all  in  this  state,  at  the 
present  day.  It  is  mentioned  only  because  it  formerly  was  employ- 
ed amongst  our  conveyances,  and  is  sometimes  mentioned  in  our 
early  reports. 

The  next  of  these  conveyances  is  the  hargain  and  sale,  which  is 
by  far  the  most  common  mode  of  alienation  in  this  state.  It  is  a 
contract  by  which  a  person  conveys  his  lands  to  another,  for  a  pe- 
cuniary consideration,  in  consequence  of  which  a  use  arises  to  the 
bargainee,  and  the  statute  immediately  vests  the  possession. 

It  is  well  settled,  upon  authority,  that  a  deed  of  bargain  and  sale, 
without  any  pecuniary  consideration,  is  void.  (Jackson  v.  Sehring^ 
16  John.  515     Same  v.  Caldwell,  1  Coiven,  622.) 

It  is  not  necessary  that  the  consideration  should  be  money. 
{Sjjalding  v.  Hallenheck,  30  Barb.  292,  296.)  It  must,  however, 
be  a  valuable  consideration  to  the  bargainor  to  raise  a  use,  a  quid 
2yro  quo.  {Jackson  v.  Pike,  9  Coiocn,  69.)  In  the  last  mentioned 
case,  the  deed  was  to  the  supervisors  of  the  county  of  C,  and  the 
consideration  was  expressed  to  be,  "  as  well  for  and  in  consideration 
of  accommodating  the  said  parties  of  the  second  part  with  a  proper 
and  convenient  site  for  erecting  a  court  house  and  jail  for  said 
county,  as  for  increasing  the  value  of  property  owned  by  the  said 
parties  of  the  first  part,  adjacent  to  the  premises  granted."  This 
was  held  by  the  supreme  court  to  be  a  valuable  consideration,  and 
that  the  deed  was  valid  as  a  deed  of  bargain  and  sale.  The  chief 
justice  said,  the  deed  was  given  in  consideration  that  a  court  house 
and  jail  should  be  built  upon  the  land;  which  was  done,  and  the 
grantors'  lands  were,  in  consequence,  immediately  and  materially, 
enhanced  in  value  by  fixing  the  site,  which  was  done  upon  the  ex- 
ecution of  the  deed. 

That  a  valuable  consideration  is  necessary  in  a  deed  of  bargain 

and  sale,  is  established  by  all  the  cases.     In  addition  to  those  cited 

supra,  see  also  Jackson  v.  Florence,  (16  John.  47;)  Same  v.  De- 

lany,  (4  Cowen,  427.) 

The  words /or  value  received  are  sufficient  to  raise  a  use.     They 


442  BARGAIN  AND  SALE. 

are  evidence  of  a  pecuniary  consideration.     (Jackson  v.  Alexander, 

3  JoJm.  484.     Saine  v.  Hoot,  18  id.  60  ) 

It  is  not  indispensable  that  the  consideration  should  be  expressed 
in  the  deed;  though  it  is  always  most  advisable  to  insert  it  in  the 
instrument.  If  none  be  expressed,  and  a  valuable  consideration  be 
proved,  it  is  sufficient.  (Jackson  v.  Fish,  10  id.  456.  Spalding  v. 
HaUenhack,  30  Barb.  292,  296.) 

No  precise  form  of  words  are  required  to  raise  a  use.  The  proper 
and  technical  words  are  "  bargain  and  sell;"  but  any  other  words 
that  would  have  been  sufficient  to  raise  a  use,  upon  a  valuable  con- 
sideration, before  the  statute,  are  now  sufficient  to  constitute  a  val- 
id bargain  and  sale.  Thus,  the  words  "  remise,  release,  and  forever 
quit-clai7n,"  or  the  words  "  release  and  assign,"  have  been  held  to 
be  sufficient  to  raise  a  use.  (Jackson  v.  Fish,  supra.)  The  words 
"  make  over  and  grant"  have  been  held  sufficient  to  pass  lands  by 
way  of  bargain  and  sale.  (Jackson  v.  Alexander,  supra.  Lynch 
V.  Livingston,  2  Seld.  422.) 

A  deed  of  bargain  and  sale,  founded  on  a  pecuniary  considera- 
tion, to  take  effect  in  future,  is  effectual.  (Jackson  v.  McKenny, 
3  Wend.  233.) 

In  a  deed  of  bargain  and  sale,  a  use  can  be  limited  to  no  other 
person  than  the  bargainee,  in  whom  the  legal  estate  can  be  executed. 
(Jackson  v.  Cary,  16  John.  302.     Same  v.  Myers,  3  id.  388.) 

A  rent  may  be  reserved  upon  a  conveyance  of  bargain  and  sale, 
and  it  is  a  sufficient  consideration  to  support  it.  The  consideration 
sufficient  to  support  a  bargain  and  sale  has  become,  says  Nelson,  J. 
in  Rogers  v.  Eagle  Fire  Ins.  Co.  (9  Wend.  619,)  purely  technical, 
without  substance  or  value,  and  of  course  it  is  not  important 
that  courts  should  be  over  astute  in  the  enforcement  of  the  rule. 
A  penny,  a  pepper  corn,  or  red  rose,  has  generally  been  adjudged  a 
good  consideration,  by  which  he  means  a  sufficient  consideration. 
In  the  foregoing  case,  where  A.  by  a  deed  poll,  "in  consideration 
of  the  performance  hereinafter  mentioned,"  granted  all  his  estate, 
real  and  personal,  to  B.  in  fee,  upon  condition  that  B.  should  suffer 
and  permit  A.  to  remain  in  possession,  and  to  use  and  enjoy  all  the 
said  estate  during  his  natural  life,  without  yielding  and  papng  any 
thing  therefor;  and  that  at  the  decease  of  A.  the  grantee  should 
pay  unto  C.  the  sum  of  £100,  and  that  during  the  natural  life  of 
A.,  the  grantee  should  provide  him  with  a  maintenance;  and  in  the 
deed  was  contained  a  clause    in  these  words :  "And  the  said  B. 


LEASE  AND  RELEASE.  443 

is  to  occupy  and  be  in  possession  of  my  houses  situate  at  the  corner 
of  Eagle  street,  for  which  he  is  to  alloio  me  £60  a  year  during  my 
natural  life;"  and  then,  after  some  furtlier  provisions  in  relation 
to  the  management  of  the  estate,  the  deed  concludes  with  a  clause, 
that/rom  aiid  after  the  decease  of  A.,  the  grantee  and  his  heirs 
shall  hold  and  enjoy  the  premises  by  the  deed  given  and  granted, 
and  dispose  thereof  to  his  and  their  own  proper  use;  it  was  held 
that  the  deed  as  to  the  house  at  the  corner  of  Eagle  street  was  valid 
and  operative  as  a  conveyance  to  B.  for  the  life  of  A,  subject  to  rent, 
with  a  remainder  to  him  in  fee  without  rent.  And  it  was  further 
held  that  the  deed  might  well  be  considered  a  bargain  and  sale, 
under  the  statute  of  uses  as  to  the  house  at  tlie  corner  of  Eagle 
street,  conveying  a  freehold  in  futiiro,  the  reservation  of  £60  a  year 
during  the  life  of  the  grantor  being  a  .sufficient  consideration  to 
raise  the  use. 

A  bargain  and  sale,  we  have  seen,  is  allowed  still  to  be  used  as  a 
mode  of  alienation,  but  it  is  deemed  a  grant  under  the  statute. 
The  principles  which  govern  the  one  are  applicable  to  the  other. 
We  have  shown  elsewhere  some  of  the  changes  introduced  into  the 
revised  statutes  relative  to  conveyances,  which  it  is  not  necessary  to 
repeat.  Most  of  them  were  borrowed  from  the  decisions  of  the 
courts  growing  out  of  the  conveyances  to  uses.  {Ste  note  to  2 
Cruise's  Dig.  ch.  9,  tit.  32,  §  1,  Greenl.  ed.  2  Preston  on  Conv.  475 
to  479.)  What  has  been  said  on  the  subject  of  deeds,  the  proof  and 
acknowledgment  and  the  recording  thereof,  appertains  as  well  to  the 
deed  of  bargain  and  sale  as  to  the  gi-ant,  or  any  other  conveyance. 

The  lease  and  release  is  another  mode  of  conveyance,  which  owes 
its  origin  to  the  statute  of  uses.  It  was  formerly  the  most  frequent 
instrument  of  assurance,  but  it  fell  into  disuse  in  1788,  and  is  at 
present  superseded  by  other  and  more  simple  assurances.  It  is 
however  preserved  by  the  revised  statutes,  and  permitted  to  be  used 
the  same  as  formerly,  but  it  is  denominated  a  grant.  It  is  in  fact 
a  bargain  and  sale  for  a  year  of  the  premises  intended  to  be  con- 
veyed, and  a  common  law  release,  operating  by  way  of  enlarging 
the  estate.  It  was  introduced  originally  in  England  to  avoid  both 
the  statute  of  enrollment  and  the  necessity  of  livery  of  seisin.  The 
mode  was  for  the  vendor  to  convey  to  the  vendee  the  estate  to  be 
conveyed  by  a  bargain  and  sale  for  one  or  more  years,  and  after  the 
entry  of  the  lessee,  a  deed  of  release  of  the  inheritance  was  executed 


444  DEED  TO  LEAD  USES. 

to  him  in  fee  simple.  The  statute  of  uses  transferred  to  the  lessee 
the  possession  without  an  actual  entry,  and  then  the  release  of  the 
reversion  carried  to  the  party  whatever  estate  the  releasor  possessed. 
The  lease  and  release  were  treated  in  the  law  as  one  conveyance. 
But  one  acknowledgment  or  proof  was  taken  of  the  execution,  and 
that  was  indorsed  upon  the  release,  which  was  alone  recorded.  It 
was  not  usual  to  record  the  lease,  or  to  produce  it  on  the  trial  of  a 
cause  to  make  out  the  title  of  the  releasee  to  the  premises.  The 
recital  of  it  in  the  release  was  deemed  conclusive  evidence  of  its  ex- 
istence upon  all  persons  claiming  under  the  parties  in  privity  of 
estate.  {Carver  v.  Jackson,  4  Peters,  88.  Cruise's  Big.  tit.  32, 
Deed,  c7i.  11,  §  6.)  Not  only  estates  in  possession,  but  estates  in 
remainder  and  reversion  can  be  conveyed  by  lease  and  release.  The 
consideration  to  raise  the  use  must  be  inserted  in  the  lease.  This 
is  usually  a  nominal  consideration  of  one  dollar;  but  a  reservation 
of  a  pepper  corn  rent  has  been  held  to  be  sufficient  to  raise  a  use  in 
a  bargain  and  sale  to  ground  a  release.  As  the  release  is  a  common 
law  conveyance,  no  consideration  need  be  expressed  to  make  it  valid, 
though  it  is  usual  to  insert  the  true  consideration,  as  has  been 
recommended  in  other  conveyances. 

The  statute  with  respect  to  the  proof  and  acknowledging  of  deeds, 
and  of  the  recording  of  them,  is  applicable  to  the  lease  and  release, 
and  the  doctrine  vdth  respect  to  parties  and  covenants  is  the  same 
in  all  cases. 

Deeds  to  lead  or  declare  the  uses  of  other  convegances,  and  deeds 
of  revocation  of  uses,  were  instruments  of  frtequent  occurrence  in 
the  English  system  of  conveyance,  and  were  occasionally  used  in 
this  state.  They  are  still  admissible  in  some  cases.  The  subject 
has  already  been  considered  in  our  chapter  on  trusts  and  powers, 
and  of  marriage  settlements.  There  have  been  but  few  cases  in 
this  state  arising  upon  conveyances  made  since  the  adoption  of  the 
revised  statutes,  in  1830. 


ALIENATION  BY  ORDER  OF  COURT.  445 


CHAPTER  VII. 

OF  ALIENATION  OF  KEAL  ESTATE   BY  THE   ORDER  OR   PERMISSION  OF 
SOME  TRIBUNAL  OR  PUBLIC  OFFICER. 

There  are  a  variety  of  cases  where  the  owner  of  real  estate  is  un- 
der a  disability  to  convey  the  fee  without  the  order  or  authority  of 
the  court.     We  wiU  instance  some  of  these  cases. 

1.  ReHgious  corporations  cannot  convey  their  lands  in  fee  simple, 
without  the  intervention  of  some  court.  The  general  act  of  1784, 
(1  GreenL  60,)  while  it  authorized  such  corporations  to  lease,  take, 
receive,  acquire,  purchase,  use  and  enjoy  lands,  tenements  and  her- 
editaments &c.  to  a  certain  amount,  limited  their  power  of  disposi- 
tion to  demise,  lease  and  improve  the  same.  Special  acts  of  the 
legislature  were  occasionally  passed,  incorporating  certain  persons 
without  restriction  as'  to  the  power  of  alienation.  The  necessity  for 
selling  their  lands  in  fee  simple,  and  of  making  different  invest- 
ments, was  often  felt  by  religious  corporations,  and  relief  was  occa- 
sionally granted  by  special  acts  of  the  legislature.  (See  a  reference 
to  these  acts,  Will.  Eq.  Jur.  734,  note.)  At  length,  in  1806,  the  gen- 
eral act  was  so  amended  that  the  chancellor  was  authorized,  upon 
the  application  of  any  religious  corporation,  in  case  he  should  deem 
it  proper,  to  make  an  order  for  the  sale  of  any  real  estate  belonging 
to  such  corporation,  and  to  direct  the  application  of  the  moneys 
arising  therefrom  by  the  said  corporation,  to  such  uses  as  the  same 
corporation,  with  the  consent  and  approbation  of  the  chancellor, 
should  conceive  to  be  most  for  the  interest  of  the  society  to  which 
the  real  estate  so  sold,  belonged.  (29  Sess.  ch.  43,  §  3.)  But  this 
provision  did  not  extend  to  any  of  the  lands  granted  by  this  state 
for  the  sifpport  of  the  gospel. 

Since  the  abolition  of  the  court  of  chancery,  the  application  for 
leave  to  sell  or  mortgage  the  real  estate  of  a  religious  corporation  is 
made  to  the  supreme  court  of  the  district,  or  the  county  court  of 
the  county  where  the  religious  corporation  is  located.  {Code,  §  30, 
Judiciary  act  of  1847,  p.  323,  §  16.) 

The  principal  difficulty  with  respect  to  the  alienation  of  real 
property  held  by  a  religious  corporation  was,  that  the  legal  estate 
in  the  hands  of  the  purchaser,  with  notice  of  the  trust,  would  be 


446  RELIGIOUS  CORPORATIONS.    INFANTS. 

chargeable  with  the  charitable  uses  to  which  it  was  originally  de- 
voted. Real  estate  held  by  a  corporation,  for  its  ordinary  purposes, 
or  which  it  might  acquire  in  the  course  of  its  business,  niiglit  be 
sold  and  conveyed,  and  may  be  so  still,  in  the  same  way  as  a  natu- 
ral person  disposes  of  his  own  property.  But  real  property  held  by 
a  corporation  to  charitable  uses,  would  be  followed  by  a  court  of 
equity  into  the  hands  of  the  alienee  with  notice.  This  is  the  view 
taken  of  the  subject,  by  the  chancellor,  in  Dutch  Church  v.  Mott, 
(7  Paige,  84.)  And  hence  the  necessity  of  the  act,  by  which,  with 
the  leave  of  the  court,  real  estate  thus  held  in  trust,  may  be  aliened 
to  a  purchaser,  free  from  the  trust;  so  that  the  latter  may  take  a 
clear  and  indefeasible  estate  in  fee  simple,  freed  from  all  charges 
thereon. 

The  mode  in  which  the  relief  is  granted  is  by  petition  to  the 
court,  showing  the  necessity  and  propriety  of  the  application,  and 
the  assent  of  the  persons  interested  beneficially  in  the  property  to 
the  proposed  sale  and  reinvestment.  The  deed  should  recite  enough 
of  the  proceedings  to  give  the  court  making  the  order  jurisdiction, 
and  should  purport  to  convey  the  premises  in  pursuance  of  the  or- 
der. In  other  respects  the  deed  ^vill  resemble  our  statute  grants, 
or  the  common  deeds  of  bargain  and  sale.  The  most  usual  occa- 
sions for  the  application  are,  when  the  corporation  is  under. the  ne- 
cessity of  mortgaging  their  real  estate  to  secure  the  payment  of 
their  indebtedness,  or  is  desirous  of  changing  the  location  of  their 
religious  edifice. 

Another  instance  of  persons  under  disability  having  to  resort  to 
the  court  for  leave  to  sell  their  real  estate,  is  in  the  case  of  infant^. 
By  the  common  law  the  rule  seems  to  be  universal,  that  all  deeds 
or  instruments  under  seal,  executed  by  an  infant,  are  voidable  only, 
with  the  single  exception  of  those  which  delegate  a  naked  authority, 
which  latter  are  void.  {Bool  v.  Mix,  17  Wend.  119.  '  Gillet  v. 
Stanley,  1  Hill,  121.)  Such  deed  of  lands  executed  by  an  infant 
cannot  be  avoided  until  he  comes  of  age,  though  he  may  enter  and 
take  the  profits  in  the  mean  time.  {Bool  v.  Mix,  supra.)  Previ- 
ous to  the  year  1814  there  was  no  mode  of  disposing  of  the  real 
estate  of  infants  but  by  act  of  the  legislature.  Special  acts  were 
frequently  passed  for  this  purpose;  when  at  length  on  the  9th  of 
April,  1814,  the  legislature  authorized  the  infant,  by  his  guardian 
or  next  friend,  to  apply  to  the  court  of  chancery  by  petition,  setting 


SALE  OF  INFANTS'  REAL  ESTATE.  447 

forth  the  grounds  and  reasons  for  the  application,  and  the  court  was 
empowered  to  gi-ant  an  order  for  the  sale  of  such  of  the  infant's  real 
estate  as  was  necessary  and  proper  for  his  supjwrt  and  maintenance j 
and  to  take  order  for  the  investment  and  disposition  of  the  proceeds. 
(L.  of  1814,  ch.  108.)  By  the  act  of  the  follo\\ang  year,  this  juris- 
diction was  so  extended  that  the  chancellor  might  order  the  real 
estate  of  infants  to  be  sold,  when  the  interests  of  the  infants 
required  it.  (L.  of  1815,  ch.  106.)  The  application  was  conducted 
in  a  summary  way,  under  a  rule  adopted  by  Chancellor  Kent, 
framed  specially  for  that  purpose,  in  obedience  to  the  requirement 
of  the  act.  (Ex  parte  Quackenboss,  3  John.  Ch.  408.)  The  exist- 
ing law  is  a  revision  of  the  foregoing  statutes,  and  prescribes  the 
mode  of  the  proceeding,  so  as  adequately  to  protect  the  rights  of  the 
infant,  and  directs  that  whenever  it  shall  appear  satisfactorily  that 
a  disposition  of  any  part  of  the  real  estate  of  the  infant,  qt  of  his 
interest  in  any  term  for  years,  is  necessary  and  proper,  either  for 
the  support  and  maintenance  of  such  infant,  or  for  his  education; 
or  that  the  interest  of  such  infant  requires  or  will  be  substantially 
promoted  by  such  disposition,  on  account  of  any  part  of  his  said 
property  being  exposed  to  waste  and  dilapidation,  or  on  account  of 
its  being  wholly  unproductive,  or  for  any  other  peculiar  reason  or 
circumstances,  the  court  may  order  the  letting  for  a  term  of  years, 
the  sale  or  other  disposition  of  such  real  estate  or  interest,  to  be 
made  by  such  guardian  or  guardians  so  appointed,  in  such  manner 
and  with  such  restrictions  as  shall  be  deemed  expedient.  But  no 
real  estate  or  term  for  years  shall  be  sold  or  disposed  of  in  any  man- 
ner against  the  provisions  of  any  last  will,  or  of  any  conveyance  by 
which  such  estate  or  t^rm  was  devised  or  granted  to  such  infant. 
(2  B.  S.  195,  §§  175,  176.)  It  was  not  the  practice  of  the  late  court 
of  chancery  to  authorize  the  sale  of  a  future  interest  in  real  estate 
belonging  to  infants,  except  under  very  special  circumstances;  nor 
for  the  mere  purpose  of  increasing  the  income  of  an  adult  owner  of 
a  present  interest  in  the  estate.     (Matter  of  Jones,  2  Barb.  Ch.  22.) 

It  is  quite  clear  that  the  jurisdiction  of  the  court  of  chancery  to 
order  the  sale  of  real  estate  belonging  to  infants  was  derived  entirely 
from  the  statute.  A  sale,  therefore,  made  by  order  of  the  court 
contrary  to  the  provisions  of  the  statute  was  utterly  void,  and  pass- 
ed no  title  to  the  purchaser.     (Bogers  v.  Bill,  6  Hill,  415.) 

The  mode. of  conducting  the  proceedings  was  by  petition  of  the 
infant  by  his  guardian  or  next  friend.     The  court  appointed  the 


448  SALE  OF  LANDS  OF  IDIOTS  AND  LUNATICS. 

general  guardian,  if  there  was  one,  if  he  could  give  the  requisite 
security;  if  he  had  no  general  guardian,  that  fact  should  be  stated 
in  the  petition,  when  a  special  guardian  was  appointed  for  that 
purpose.  The  matter  was  then  referred  to  a  master,  whose  duty  it 
was  to  examine  as  to  the  age  of  the  infant,  and  the  actual  value  of 
his  interest  in  the  property,  so  far  at  least  as  to  detennine  whether 
the  value,  as  stated  in  the  petition,  is  substantially  correct; 
and  he  was  required  to  certify  what  sum  was  requisite  under  the 
rule,  and  that  the  sureties  of  the  guardian  were  worth  that  sum 
over  and  above  all  debts.  {Matter  of  Lansing,  3  Paige,  265. 
Matter  of  Wilson,  2  id.  412.)  The  master  was  required  to  take 
testimony  as  to  the  facts,  and  report  the  result  briefly.  {Matter  of 
Morgan,  4  Paige,  44.) 

The  mode  of  proceeding  is  now  substantially  the  same,  a  reference 
to  a  referee  instead  of  a  master  being  necessary  since  the  abrogation 
of  the  latter  office.  The  statute  contains  suitable  provisions  as  to 
the  right  of  dower,  if  any,  in  the  premises.  The  deed,  which  is 
authorized  by  the  court,  is  executed  by  the  special  guardian,  and 
should  recite  the  proceedings,  or  enough  thereof  to  give  jurisdiction 
to  the  court,  and  should  purport  to  be  by  order  of  the  court  and  in 
pursuance  of  the  statute.  The  granting  clause  is  substantially  like 
the  statute  grant,  or  a  deed  of  bargain  and  sale.  It  merely  conveys 
to  the  purchaser  and  his  heirs,  and  covers  all  the  estate  which  the 
infant  had  in  the  premises,  and  without  any  covenants  for  title. 
The  statute  provides  that  all  sales,  leases,  dispositions  and  convey- 
ances made  in  good  faith  by  the  guardian  in  pursuance  of  the  order 
of  the  court,  when  confirmed  by  the  court,  shall  be  valid  and  effect- 
ual as  if  made  by  such  infant  when  of  full  age.     (2  R.  S.  195,  §  173.) 

These  sales  are  conducted  in  a  summary  way,  and  without  the 
notoriety  which  attends  adverse  proceedings  in  courts.  If  fraudu- 
lently conducted,  or  the  requisite  steps  to  pass  the  title  be  omitted 
by  carelessness  or  design,  the  title  may  prove  defective,  and  the 
whole  proceedings  be  void.  {See  Clark  v.  Underwood,  17  Barb. 
202.  Rogers  v.  Dill,  supra.)  The  deed  should  be  proved  or  ac- 
knowledged, and  recorded. 

Analogous  to  the  condition  of  infants  is  that  of  idiots,  lunatics, 
persons  of  unsound  mind,  and  habitual  drunkards,  against  whom  a 
commission  has  been  awarded,  after  their  estates  have  been  put  in 
the  hands  of  a  committee.     From  that  period  their  power  of  alien- 


SALE  OF  LANDS  OF  DECEASED  PERSONS.       449 

ation  of  it  is  taken  away.  The  statute  provides  that  on  a  proper 
application  of  the  committee,  by  petition,  the  court  may  order  the 
mortgage,  leasing  or  sale  of  the  whole,  or  such  part  of  the  real  es- 
tate as  may  be  necessary  to  discharge  the  debts  of  the  party  thus 
laboring  under  this  disability,  (2  R.  S.  54,  §  13.)  A  subsequent 
section  confers  the  same  power  upon  the  court  to  order  a  mortgage, 
lease  or  sale,  if  the  personal  estate  be  insufficient  for  the  mainte- 
nance of  the  party  thus  disabled,  or  for  the  educatidn  of  his  chil- 
dren. {Id.  §  16.)  These  objects,  the  payment  of  debts,  and  the 
support  and  maintenance  of  the  lunatic  and  his  family,  or  the  edu- 
cation of  his  children,  are  the  limits  of  the  power  of  the  court.  {In 
■  the  matter  of  Petit,  2  Paige,  596.)  The  estate  cannot  be  sold  on 
the  application  of  the  committee,  for  the  purpose  of  improving  the 
investment.     This  can  be  done  only  by  act  of  the  legislature. 

The  deed  given  by  the  committee  should,  as  in  the  case  of  a  sale 
of  infants'  estates,  recite  enough  of  the  proceedings  to  give  juris- 
diction to  the  court,  and  state  the  substance  of  the  order,  and  then 
contain  the  usual  granting  clause,  as  in  other  deeds.  The  part)'" 
investigating  the  title  under  these  sales  must  be  careful  to  see  that 
the  court  had  jurisdiction  to  make  the  order,  and  that  the  requisite 
jurisdictional  steps  had  been  taken  by  the  committee.  The  deed 
contains  no  covenants  for  title. 

The  real  estate  of  deceased  persons  can  only  be  aliened  by  their 
personal  representatives,  by  proceedings  in  the  surrogate's  court  of 
the  county,  on  the  application  of  the  executors  or  administrators, 
within  three  years  from  the  date  of  their  letters  testamentary  or 
of  administration.  The  mode  of  conducting  these  proceedings,  and 
the  circumstances  which  render  the  application  proper,  will  be 
found  discussed  in  treatises  on  the  practice  of  surrogates'  courts,  to 
which  the  reader  is  referred.  (  Will,  on  Ex.  p.  306,  et  seq.)  In 
investigating  the  title  of  the  purchaser  under  these  sales,  the  main 
inquiry  is,  whether  the  court  had  acquired  jurisdiction  of  the  par- 
ties and  subject  matter,  before  making  the  order,  and  whether 
the  sale  had  been  conducted  with  fairness,  and  freedom  from  such 
irregularities  as  render  it  void. 

Even  if  the  proceedings  before  the  court  be,  in  aU  respects,  in 
conformity  to  the  statute,  and  the  sale  be  conducted  on  proper  no- 
tice, it  may  still  be  invalid,  if  the  purchase  is  made  by  the  execu- 
tors or  administrators  for  their  own  benefit,  or  by  persons  standing 
in  confidential  relations  to  the  owners  of  the  estate.     The  law,  for 

Will.— 29 


450  sjlles  by  order  of  surrogate. 

the  ^visest  of  imrposes,  prohibits  a  party  froDi  purchasing,  on  his 
own  account,  that  which  his  duty  or  trust  requires  him  to  sell  on 
account  of  another,  and  from  purchasing  on  account  of  another  that 
which  he  sells  on  his  own  account.  (  Will.  Eq.  Jur.  605,  GOG,  and 
the  cases  there  cited.)  The  statute  has  applied  these  princii)les  to 
the  sales  under  the  order  of  the  surrogate,  and  prohibited  the  ex- 
ecutors or  administrators,  and  guardians  of  minor  heirs  of  the  de- 
ceased, from  being  interested  in  the  purchase  of  any  of  the  real 
estate  of  the  deceased  so  sold.  All  sales  made  contrary  to  the  pro- 
visions of  that  section  of  the  act  are  declared  to  be  void;  but  an 
exception  is  made  in  favor  of  a  purchase  by  a  guardian  for  the  ben- 
efit of  his  ward.  (2  R.  S.  105,  §  27.  Will,  on  Ex'rs,  326.  2  Sug. 
Vend.  Perk.  ed.  362  etscq.) 

The  conveyances  are  to  be  executed  by  the  executors  or  adminis- 
trators, or  by  the  person  appointed  by  the  surrogate  to  conduct  the 
sale.  They  are  required  to  contain  and  set  forth  at  large,  the  ori- 
ginal order  authorizing  a  sale,  and  the  order  confirming  it,  and  di- 
recting the  conveyance  to  be  made. 

Prior  to  1850  surrogates'  courts  were  held  to  great  strictness  in 
the  conducting  these  sales.  They  were  treated  as  courts  of  inferior 
and  limited  jurisdiction;  and  those  claiming  under  their  decrees 
were  required  to  show  affirmatively  that  the  court  had  authority  to 
make  the  decree,  and  that  the  facts  upon  which  the  surrogate  acted 
gave  him  jurisdiction  of  the  subject  matter,  and  of  the  persons  be- 
fore him.  (^Dakin  v.  Hudson,  6  Coioen,  221.  Bloom  v.  Burdichy 
1  Hill  130.  Corwin  v.  Merrill,  3  Barb.  331.  People  v.  Barnes^ 
12  Wend.  492.) 

The  act  of  March  23,  1850,  ch.  82,  changed  the  foregoing  rules, 
and  placed  the  sale  by  order  of  surrogates'  courts,  as  well  those 
theretofore  made  as  those  thereafter  to  be  made,  on  the  same  foot- 
ing as  if  made  by  order  of  a  court  having  original  general  jurisdic- 
tion. It  provides  that  a  purchase,  at  any  such  sale  in  good  faith, 
shall  not  be  impeached  or  invalidated,  by  reason  of  any  omission, 
error,  defect  or  irregularity  in  the  proceedings  before  the  surrogate, 
or  by  an  allegation  of  want  of  jurisdiction  on  the  part  of  the  surro- 
gate; except  in  the  manner  and  for  the  causes  that  the  same  could 
be  impeached  or  invalidated,  in  case  such  sale  had  been  made  pur- 
suant to  the  order  of  a  court  of  original  general  jurisdiction.  The 
statute  in  the  second  and  third  sections  directs  that  certain  speci- 
fied defects,  which  the  courts  had  formerly  held  to  be  fatal,  should 


SALE  OF  LANDS  OF  MARRIED  WOMEN.  451 

no  longer  render  tlie  sale  invalid.  These  sales,  with  respect  to  their 
validity,  stand  upon  the  same  grounds  that  are  occupied  by  the  sale 
of  infants'  estates  under  the  general  laws  conferring  jurisdiction  up- 
on the  supreme  court  and  county  courts  over  these  estates.  In  all 
these  cases,  a  want  of  jurisdiction  in  the  court  would  be  fatal  to  the 
proceedings.  The  main  diiference  between  the  present  law  and  the 
former  practice  is,  that  the  regularity  and  jurisdiction  are  now  pre- 
sumed in  favor  of  the  i^roceeding,  whereas  formerly  they  had  to  be 
sho\\'Ti,  and  no  presumption  was  indulged  in  their  behalf. 

The  surrogate  had  no  jurisdiction  to  order  the  sale  of  real  estate 
of  the  testator  for  the  payment  of  debts,  if  the  testator  had  charged 
the  payment  of  his  debts  upon  his  real  property.  (2  R.  S.  105, 
§  32.)  The  remedy  of  the  creditor  to  enforce  such  charge  is  in 
equity.  If  the  executor  has  de\'ised  his  lands  to  his  executors  in 
trust  to  pay  debts,  or  simply  empowered  them  to  sell  the  lands  for 
that  purpose,  the  surrogate  has  no  jurisdiction  over  the  subject  to 
compel  the  execution  of  the  power,  or  to  order  the  sale  of  the  lands, 
but  the  jurisdiction,  in  that  respect,  is  in  equity.  With  regard  to 
what  direction  in  a  will  amounts  to  a  charge  on  the  real  estate,  in 
favor  of  creditors  or  legatees,  so  as  to  oust  the  surrogate  of  juris- 
diction, see  Lupton  v,  Lupton,  (2  John.  Ch.  614,  624;)  Willard 
on  Ex'rSj  328,  and  the  subsequent  chapter  on  devises. 

With  respect  to  the  disability  of  married  women  to  convey  their 
real  estate,  there  are  but  few  instances  where  the  consent  and  ap- 
probation of  a  public  officer  is  necessary.  In  general,  a  married 
woman  can  alien  her  real  estate,  or  her  inchoate  right  to  dower,  by 
uniting  with  her  husband  in  a  conveyance  of  it  by  any  of  the  instru- 
ments recognized  by  the  law,  as  grant,  bargain  and  sale,  &c.  and 
acknowledging  the  same,  on  a  private  examination,  apart  from  her 
husband,  that  she  executed  it  freely,  and  without  any  fear  or  com- 
pulsion of  her  husband.  (1  B.  S.  758,  §  10.)  Enough  has  been 
said  on  this  subject  in  a  previous  section.  In  these  cases,  the  con- 
veyance is  not  made  by  order  of  the  officer  who  takes  the  acknowl- 
edgment. But  there  are  a  few  instances  where  an  order  has  to  be 
obtained  to  give  effect  to  the  conveyance,  either  to  or  by  a  married 
woman. 

Thus,  the  trustee  of  a  married  woman  of  real  or  personal  estate, 
under  any  deed  of  conveyance  or  otherwise,  may,  on  the  written 
request  of  such  married  woman,  accompanied  by  a  certificate  of  a 


452  LANDS  OF  MARRIED  WOMEN. 

justice  of  the  supreme  court,  that  lie  has  examined  the  condition 
and  situation  of  tlie  property^  and  made  due  inquiry  into  tho 
capacity  of  sucli  married  woman  to  manage  and  contrtd  tho 
Bame,  convey  to  such  married  woman,  by  deed  or  otherwise,  all  or 
any  portion  of  such  property,  or  the  rents,  issues  or  profits  thereof, 
for  her  sole  and  separate  use  and  benefit.  (L.  of  1849,  ch.  375,  p. 
b2d>,  §  2.)  The  inquiry  by  the  judge  as  to  the  capacity  of  the 
married  woman  is  not  usually  extended  farther  than  to  see  that  she 
is  not  laboring  under  any  other  disability,  as  infancy  &c.,  and  that 
she  acts  freely  and  without  restraint  or  coercion.  When  she  be- 
comes seised  of  the  property  in  her  own  right,  her  power  of  dispo- 
sition over  it  is  governed  by  the  same  rules  as  those  which  regulate 
her  alienation  of  her  private  property.  We  have  seen  that  she  can 
dispose  of  it  as  if  she  were  sole.     {See  ante,  p.  391.) 

The  act  of  1860,  chapter  90,  has  gone  further  in  some  respects 
tliau  tlie  act  relative  to  the  rights  of  married  women,  passed  in  1849, 
and  in  other  respects  has  fallen  short  of  it.  The  act  of  1849  author- 
ized a  married  woman  to  take  by  inheritance  or  by  gift,  grant,  de- 
vise or  bequest,  from  any  person  other  than  her  husband,  and 
hold  to  her  sole  and  separate  use,  and  convey  and  devise  real  and 
personal  jjroperty,  and  any  interest  or  estate  therein,  and  the  rents, 
issues  and  profits  thereof,  in  the  same  manner  and  with  the  like 
effect  as  if  she  were  unmarried;  and  the  same  was  declared  not  to 
be  subject  to  the  disposal  of  her  husband,  nor  liable  for  his  debts. 
{L.  0/1849,  p.  528.)  Thus,  the  ownership  of  real  estate  by  a  mar- 
ried woman  was  accompanied  by  the  unrestricted ^ms  disponendi. 

The  act  of  1860  extended  the  ownership  of  a  married  woman  fur- 
ther, but  imposed  some  limitations  on  her  power  of  alienation.  It 
interferes  very  essentially  wdth  the  marital  rights  of  the  husband, 
as  they  existed  at  common  law.  It  declares  that  the  property,  both 
real  and  personal,  which  any  married  woman  now  owns  as  her  sole 
and  separate  property;  that  which  comes  to  her  by  descent,  devise, 
bequest,  gift  or  grant;  that  which  she  acquires  by  her  trade,  busi- 
ness, labor  or  services,  earned  on  or  performed  on  her  sole  or  sepa- 
rate account;  that  which  a  woman  mamed  in  this  state  owns  at  the 
time  of  her  marriage,  and  the  rents,  issues  and  proceeds  of  all  such 
property  shall,  notwithstanding  her  marriage,  be  and  remain  her 
sole  and  separate  jiroperty,  and  may  be  used,  collected  and  invested 
by  her  in  her  own  name,  and  shall  not  be  subject  to  the  interference 
or  control  of  her  husband,  or  liable  for  his  debts,  except  such  debts 


SALE  OF  LANDS  OF  MARRIED  WOMEN.  453 

as  may  have  been  contracted  for  the  support  of  herself  or  lier  chil- 
dren by  her,  as  his  agent.     (X.  of  1860,  jj.  157.) 

With  respect  to  her  real  estate  as  her  separate  property,  a  mar- 
ried woman  is  authorized,  by  the  third  section  of  the  same  act,  to 
bargain,  sell  and  convey  such  property,  and  enter  into  any  contract 
in  reference  to  the  same;  but  no  such  conveyance  or  contract  is  valid 
without  the  assent  in  writing  of  her  husband,  except  in  certain 
cases  which  will  soon  be  noticed.  This  is  a  restriction  upon  the 
power  of  alienation  by  a  married  woman  not  contained  in  the  act 
of  1849.  The  legislature  failed  to  carry  out  the  principles  on  which 
the  law  is  based — the  separate  ownership  of  property,  of  which  the 
jus  disponendi  is  an  incident. 

It  was  foreseen  that  there  might  be  cases  in  which  the  assent  of 
the  husband,  to  the  disposition  of  her  property  by  the  wife,  could 
not  be  procured.  In  case  this  is  occasioned  in  consequence  of  his 
refusal,  absence,  insanity  or  other  disability,  she  may  apply  on  pe- 
tition to  the  county  court  of  the  county  where  she  resides,  for  leave 
to  make  such  sale,  and  that  court,  on  examining  into  the  grounds 
of  the  application,  may,  in  its  discretion,  order  notice  of  the  appli- 
cation to  be  given  to  the  husband. 

If  it  appears  to  the  court  that  the  husband  has  willfully  aban- 
doned his  said  wife,  and  lives  separate  and  apart  from  her,  or  that 
he  is  insane,  or  imprisoned  as  a  convict  in  any  state  prison,  or  that 
he  is  an  habitual  drunkard,  or  that  he  is  in  any  way  disabled  from 
making  a  contract,  or  that  he  refuses  to  give  his  consent,  without 
good  cause  therefor,  the  court  may  cause  an  order  to  be  entered 
upon  its  records,  authorizing  such  married  woman  to  sell  and  convey 
her  real  estate,  or  contract  in  regard  thereto  without  the  assent  of 
her  husband,  with  the  same  effect  as  though  such  conveyance  or 
contract  had  been  made  with  his  assent. 

What  shall  be  a  good  cause  for  the  husband  to  withhold  his  re- 
fusal, when  he  is  laboring  under  no  disability,  has  not  yet  been 
decided.  But  if  he  gives  his  assent,  or  if  having  refused  it,  and 
the  court  shall  have  authorized  the  sale  by  an  order  in  its  records, 
the  conveyance  should  contain  recitals  of  the  necessary  facts  to  au- 
thorize the  married  woman  to  convey. 

The  assent  of  the  husband  to  such  conveyance  by  the  wife  would 
be  decisively  manifested  by  his  uniting  -wath  her  in  the  deed.  It 
may,  it  is  presumed,  be  in  a  separate  instrument ;  and  if  that  course 
be  adopted,  the  assent  should  be  recited  in  the  deed  of  the  wife, 


454  JUDICIAL  SALES. 

and  the  original  should  be  annexed  to  it.  A  party  deriving  title 
under  such  sale,  would  need  for  his  protection  some  evidence  of  the 
husband's  assent. 

The  act  of  1860  does  not,  like  that  of  1849,  except  in  terms,  a 
gift  or  grant  from  the  husband  to  the  wife,  as  a  source  of  her  title. 
But  probably  the  act  of  1849  was  merely  in  affirmance  of  the  com- 
mon law,  and  if  so,  it  is  equally  applicable  to  the  act  of  1860, 
as  the  common  law  is  not  presumed  to  be  changed  unless  there  is  a 
manifest  intention  on  the  part  of  the  lawgiver,  to  make  an  alter- 
ation. 

The  sale  and  conveyance  of  mortgaged  premises,  on  a  foreclosure, 
is  the  result  of  judicial  proceedings,  and  the  title  is  conveyed  by 
the  act  or  permission  of  some  tribunal  or  public  officer.  Enough 
was  said  on  this  subject,  when  we  were  treating  of  mortgages,  in  a 
former  chapter.  It  is  sufficient  to  add,  that  by  the  code  of  proce- 
dure, when  real  property  is  adjudged  to  be  sold,  it  must  be  sold  in 
the  county  where  it  lies,  by  the  sheriif  of  the  county,  or  by  a  referee, 
appointed  by  the  court  for  that  purpose,  and  thereupon  the  sheriff 
or  referee  must  execute  a  conveyance  to  the  purchaser,  which  con- 
veyance is  declared  to  be  effectual  to  pass  the  rights  and  interests 
of  the  parties  adjudged  by  the  decree  to  be  sold.  (Code,  §  287,  as 
amended  in  1849.) 

The  title  derived  from  the  sale  by  a  sheriff,  under  an  execution 
issued  upon  a  judgment  of  courts  of  record,  or  of  such  other  judg- 
ments as  are  made  a  lien  uj^on  the  real  estate  of  the  debtor,  owes 
its  origin  to  modern  legislation,  and  was  unknown  to  the  common 
law.  Parties  were  subjected  to  rigorous  imprisonment  for  the 
non-payment  of  judgments,  long  before  their  real  estate  could  be 
reached  by  an  execution.  It  is  not  deenaed  expedient  to  trace  the 
origin  of  the  changes  in  this  state,  with  respect  to  this  matter.  Im- 
prisonment for  debt  was  abolished  in  1831.  {L.  o/1831,^,  396, 
cli.  300.)  The  real  estate  of  the  judgment  debtor  w^as  made  liable 
for  his  debts  many  years  before  that  time;  and  the  necessity  of 
reaching  his  equitable  interests  has  been  made  more  urgent  by  the 
entire  freedom  of  his  person  from  arrest  and  imprisonment  for  debt, 
except  in  cases  of  fraud,  and  a  few  other  instances.  The  sale  and 
conveyance  of  real  estate,  under  judgment  and  execution,  alone  falls 
within  the  scope  of  this  work. 


JUDICIAL  SALES.  455 

To  enable  the  party  to  sell  the  real  estate  of  the  judgment  debtor 
under  an  execution,  the  judgment  must  be  a  lien  upon  the  estate. 

Such  judgment,  followed  up  by  an  appropriate  execution,  con- 
tains a  statute  authority  to  the  sheriff  or  other  officer  empowered  to 
act  in  that  behalf,  to  sell  the  real  estate  of  the  debtor,  if  the  per- 
sonal estate  proves  insufficient  to  satisfy  the  judgment. 

To  make  the  judgment  effectual  for  this  purpose  it  must  be  dock- 
eted in  the  office  of  the  clerk  of  the  county  where  the  lands  sought 
to  be  charged  lie;  and  it  continues  such  lien  upon  such  lands, 
and  any  other  which  the  debtor  may  acquire  thereafter,  for  ten 
years  from  the  time  of  docketing  the  same  in  the  county  where  it 
was  rendered.  A  judgment  rendered  by  a  justice  of  the  peace  for 
twenty-five  dollars  or  upwards  may  be  also  docketed  in  the  county 
•where  it  was  rendered,  and  becomes  in  like  manner  a  lien  from  the 
time  of  filing  and  docketing  the  transcript.  .  A  certified  transcript 
of  the  judgment  may  be  filed  and  docketed  in  any  county,  with  the 
like  efiect  in  all  respects  as  in  the  county  where  the  judgment  was 
rendered.  A  judgment  of  a  justice  when  docketed  becomes  a  judg- 
ment of  the  county  court.     {Code,  §§  63,  262.     3  R.  S.  642,  5th  ed.) 

An  execution  to  enforce  the  judgment  may  be  issued  at  any  time 
within  five  years  after  the  entry  of  the  judgment,  without  special 
leave  of  the  court;  after  the  expiration  of  that  period  it  can  only 
be  issued  by  leave  of  the  court,  on  a  motion  for  that  purpose,  of 
which  previous  notice  should  be  given.     {Code,  §§  283, 284)     The 
execution-  must  be  directed  to  the  sheriff",  or  coroner  when  the  sher- 
iff is  a  party  or  interested,  subscribed  by  the  party  issuing  it,  or 
his  attorney,  and  must  intelligibly  refer  to  the  judgment,  stating 
the  court,  the  county  where  the  judgment  roll  or  transcript  is  filed, 
the  names  of  the  parties,  the  amount  of  the  judgment^  if  it  be  for 
money,  and  the  amount  actually  due  thereon,  and  the  time  of  dock- 
eting in  the  county  to  which  the  execution  is  issued;  and  shall  re- 
quire the  officer,  if  it  be  against  the  property  of  the  judgment  debtor, 
to  satisfy  the  judgment  out  of  the  personal  property  of  such  debtor, 
and  if  sufficient  property  cannot  be  found,  out  of  the  real  property 
belonging  to  him  on  the  day  when  the  judgment  was  docketed  in  the 
county,  or  at  any  time  thereafter.     {Code,  §  289.)     There  are  other 
forms  of  execution,  but  it  is  of  this  we  have  to  do  at  present.     The 
execution  is  returnable  within  sixty  days  after  its  receipt  by  the 
officer,  to  the  clerk  with  whom  the  record  of  judgment  is  filed. 
With  regard  to  the  kind  of  real  property  which  may  be  sold 


456  JUDICIAL  SALES. 

under  an  execution,  and  from  wliat  time  it  is  bound,  it  may  be 
remarked  that  no  jnd<j^ment  becomes  a  lien  from  the  time  of  the 
docketing  it  upon  a  mere  chattel  interest,  but  only  upon  a  freehold, 
A  term  for  years  is  not  bound  by  the  docketing  of  a  judgment. 
( Vredenhurgh  v,  Morris,  1  John.  Ch.  223,  Merry  v.  Ilallet,  2 
Cowen,  497.)  Nor  are  estates  at  will  or  at  sufferance  liable  to  be 
sold  under  an  execution.  {Colvin  v.  Baker,  2  Barb.  206.)  It  is 
only  an  estate  amounting  to  a  freehold  that  is  liable  to  the  lien 
created  by  the  docketing  of  a  judgment.  The  estate  of  a  tenant  by 
the  curtesy  may  be  sold  under  an  execution.  (Schermerhorn  v. 
Miller,  2  Cowen,  439.)  By  parity  of  reasoning,  an  estate  in  dower, 
or  a  conventional  life  estate,  may  be  sold  by  the  sheriff  by  virtue 
of  an  execution  on  a  judgment  against  the  tenant  for  life. 

The  property  which  is  bound  by  the  docketing  of  a  judgment  is 
the  real  property  corporeal,  and  not  incorporeal.  The  term  "  lands, 
tenements  and  real  estate,"  which  are  subject  to  such  lien,  is  used 
by  the  act  in  a  popular  sense,  as  embracing  things  tangible.  And 
hence  a  rent  reserved  upon  a  conveyance  in  fee  of  land  is  not  subject 
to  such  lien,  or  liable  to  be  sold  on  execution,  though  the  convey- 
ance contain  af  clause  of  distress  and  a  provision  for  re-entry,  (Fayn 
V.  Beal,  4  Denio,  405,  overruling  the  People  v,  Raskins,  7  Wend. 
463.) 

The  question  how  far  the  interest  of  a  person  in  possession  of 
land,  who  has  no  legal  title  to  it,  may  be  affected  by  a  sale,  is  an 
interesting  subject  of  inquiry.  The  matter  was  considered  by  the 
chancellor,  in  Talbot  v.  Chamberlain,  (3  Paige,  220.)  Previous 
to  the  .revised  statutes,  says  the  chancellor,  if  the  judgment  debtor 
was  in  possession  of  land  at  the  time  of  the  sale  thereof  on  an  exe- 
cution against  him,  he  was  estopped  from  denying  that  he  had  any 
interest  in  the  land.  The  bare  possession  was  an  interest  which 
might  be  sold  on  execution,  and  the  purchaser  acquired  the  same 
interest  which  the  defendant  in  the  execution  had,  and  no  more. 
If  the  latter  was  a  mere  tenant  at  will  or  by  sufferance,  or  even  was 
in  possession  without  color  of  Tight,  the  purchaser,  as  against  him 
and  those  claiming  under  him,  had  a  right  to  be  substituted  in  his 
place  so  far  as  respected  the  possession  and  any  legal  rights  of  the 
defendant  connected  therewith.  {Jackson  v,  Graham,  3  CaineSy 
188.  Jackson  v.  Parker,  9  Cowen,  84.)  Possession  was  consid- 
ered to  be  such  an  interest  in  land  as  to  be  the  subject  of  sale  under 


JUDICIAL  SALES.  457 

execution,  and  such  is  the  rule  now  where  the  case  does  not  fall 
within  the  statute. 

If  the  defendant  was  in  under  a  contract  to  purchase,  and  had 
actually  paid  all  the  purchase  money,  so  that  the  vendor  held  the 
premises  as  a  mere  naked  trustee  for  the  use  of  the  defendant,  his 
equitable  interest  also  passed  under  a  sale  by  the  sheriff.  (1  John. 
Ch.  56.  17  JoJm.  356.)  The  revised  statutes  have  altered  the 
law  in  these  respects,  by  prohibiting  the  sale  on  execution  at  law, 
of  the  interest  of  a  person  holding  a  contract  for  the  purchase  of 
land.  (1  B.  S.  744,  §  4.)  Even  if  the  purchaser  has  paid  the 
whole  purchase  money,  if  he  had  not  obtained  the  legal  title,  the 
court  thought  his  possession  under  the  contract  could  not  be  sold 
under  an  execution  at  law.  The  remedy  was  in  equity  alone. 
(Watson  V.  Le  Boiv,  6  Barb.  481.  Brewster  v.  Power,  10  Paige^ 
562.  Griffin  v  Spencer,  6  Hill,  525.  Boughton  v.  The  Bank  of 
Orleans,  2  Barb.  Ch.  458.) 

But  where  a  trust  results  under  the  statute,  relative  to  trusts, 
(§§  51,  52,)  in  favor  of  the  creditors  of  a  person  paying  the  consid- 
eration and  taking  the  grant  in  the  name  of  another,  such  person 
takes  an  equitable  title  as  respects  his  then  creditors,  which  is  con- 
verted into  a  legal  one  in  their  favor  by  the  statute,  (Id.  §  45,)  so 
that  they  may  seU  the  land  under  the  judgments  for  their  debts, 
as  they  could  under  the  former  statute,  and  are  not  obliged  to  re- 
sort to  a  court  of  equity.  (  Wait  v.  Bay,  4  Ben.  439,  disapproving 
a  dictum  of  the  chancellor  in  Brewster  v.  Powers,  supra.) 

Prior  to  the  act  of!  April  12,  1820,  {L.  of  1820,  p.  167,)  the  sale 
by  the  sheriff  under  an  execution,  and  the  delivery  of  a  deed  to  the 
purchaser  on  the  payment  of  the  bid,  devested  the  estate  of  the 
judgment  debtor.  {Catlin  v.  Jackson,  8  John.  520.)  Real  estate 
was  sometimes  sacrificed  at  such  sales.  The  oppression  and  injus- 
tice which  occasionally  arose  in  those  cases  led  to  the  redemption 
act  of  that  year,  which  has  since  been  revised  and  improved,  and 
now  forms  an  important  part  of  our  jurisprudence. 

By  the  terms  of  the  execution,  the  personal  property  of  the  debt- 
or is  the  primary  fund  out  of  which  it  is  to  be  satisfied.  If  there 
be  none,  or  it  proves  insufficient,  resort  is  then  had  to  the  real  es- 
tate of  which  the  judgment  debtor  was  seised  on  the  day  of  the 
docketing  of  the  judgment,  or  at  any  time  afterwards,  in  whose 
hands  soever  the  same  may  then  be.     (2  R.  S.  367,  §  24.) 

The  statute  contains  minute  directions  to  the  sheriff  for  regula- 


458  REDEMPTION  BY  JUDGMENT  DEBTOR. 

ting  and  conducting  the  sale;  requiring  a  notice  of  the  time  and 
place  of  sale  to  he  i)uhli.shcd  for  six  weeks  in  a  newspaper  in  the 
county,  if  tliere  he  one,  descrihing  the  property  with  cuuinion  cer- 
tainty; and  requiring  the  sale  to  he  at  puhlic  vendue  between  the 
hours  of  nine  in  the  morning  and  the  setting  of  the  sun;  and  im- 
poses a  penalty  of  a  thousand  dollars  on  the  sheriff,  in  addition  to 
his  liability  to  the  party  injured,  for  all  the  damages  he  may  have 
sustained,  for  a  failure  on  his  part  to  comply  with  the  requirements 
of  the  statute.  But  these  and  other  provisions  of  the  law  are  di- 
rectory to  the  sheriff,  and  will  not  invalidate  the  sale  to  a  honajide 
purchaser.  {Groff  v.  Jones,  6  Wend.  522.  Ncilson  v.  Neilson,  5 
Barb.  565.)  Proof  of  the  judgment,  execution  and  sale  by  the 
usual  documentary  evidence,  followed  up  by  the  production  of  the 
sheriff's  deed,  is  all  that  is  required.  A  party  investigating  a  title 
Tinder  a  sheriff's  sale,  is  not,  in  general,  required  to  look  farther 
than  the  deed  and  the  judgment,  execution  and  sale  recited  in  it. 
Third  persons,  acting  in  good  faith,  are  not  chargeable  with  notice 
of  any  infirmity  in  the  title  occasioned  by  the  non-compliance  of 
the  sheriff  with  the  directions  in  the  statute.  If,  indeed,  the  judg- 
ment had  been  satisfied  before  the  sale,  even  a  bona  fide  purchaser 
would  acquire  no  title.  In  such  a  case,  the  sheriff  has  no  subsist- 
ing power  to  sell,  and  of  this  the  purchaser  must  take  notice  at  his 
peril.  (Id.  Wood  v.  Colvin,  2  HiU,  566.)  Much  more  will  this 
be  so,  if  the  purchaser  had  notice,  before  the  sale,  of  the  payment 
of-  the  judgment.  (Jackson  v.  Anderson,  4.  Wend.  474.)  It 
would  greatly  impair  the  confidence  in  public  sales  of  real  estate 
by  the  sheriff,  if  their  validity  might  be  affected  in  the  hands  of  a 
bona  fide  purchaser,  by  the  irregularities  of  the  sheriff,  or  his  omis- 
sion to  make  a  proper  return  to  the  execution.  (Neilson  v.  Neil- 
son,  supra,  p.  568.) 

The  existing  law  with  respect  to  a  redemption  of  the  property 
sold,  is  a  revision  of  the  act  of  1820.  It  provides  for  a  redemption, 
1st,  by  the  judgment  debtor,  and  2d,  on  his  failing  to  redeem, 
within  the  time  prescribed,  by  a  judgment  creditor. 

1.  B2/  the  judgment  debtor.  The  sherifi"  on  the  sale  makes  du- 
plicate certificates  thereof,  describing  the  premises  sold,  the  price 
bid  for  each  distinct  parcel,  the  whole  consideration  paid,  and  the 
time  when  the  sale  will  become  absolute  and  the  purchaser  will  be 
entitled  to  a  conveyance,  pursuant  to  law,  which  will  not  be  until 
the  expiration  of  fifteen  months  from  such  sale. 


REDEMPTION  OF  THE  LANDS  SOLD.  459 

The  judgment  debtor  lias  the  prior  right  to  redeem  within  one 
year  from  the  sale,  by  the  payment  to  the  purchaser,  his  personal 
representatives,  or  to  the  officer  who  made  the  sale,  for  the  use  of  the 
purchaser,  the  sum  of  money  which  was  bid  on  the  sale  of  such  lot 
or  tract  as  he  desires  to  redeem,  with  the  interest  on  that  sum  from 
the  time  of  sale,  at  the  rate  of  ten  per  cent  a  year.  The  judgment 
debtor  is  not  bound  to  redeem  the  whole  premises  sold,  when  they 
consist  of  separate  lots,  or  parcels,  and  were  sold  separately,  but 
may  redeem  any  one  or  more  of  them  at  his  option.  (3  R.  S.  651, 
§  61,  5tli  ed.)  The  right  is  not  confined  to  the  party  whose  right 
and  title  were  sold;  but  in  case  he  be  dead,  it  may  be  exercised  by 
his  devisee  of  the  premises  sold,  if  they  shall  have  been  devised, 
and  if- they  shall  not  have  been  devised,  by  the  heirs  of  such  person; 
or  by  a  grantee  of  such  person  who  shall  have  acquired  an  absolute 
title  by  deed,  sale  under  a  mortgage,  or  under  an  execution,  or  by 
any  other  means,  to  the  premises  sold,  or  to  any  lot,  tract,  parcel 
or  portion  which  shall  have  been  separately  sold.     (Id.  §  62.) 

A  sale  of  lands  under  a  judgment  perfected  by  a  deed,  destroys 
the  lien  of  the  judgment.  But  if  the  sale  be  for  a  less  sum  than 
the  amount  of  the  judgment,  and  the  premises  be  redeemed  by  the 
judgment  debtor  himself,  the  premises  may  be  resold  by  the  sheriff 
under  the  same  execution,  for  the  balance  remaining  unpaid.  The 
judgment  by  such  redemption  is  only  paid  pro  fanto,  but  remains 
a  valid  lien  for  the  residue.     (Titus  v.  Lewis,  3  Barb.  70.) 

The  party  who  seeks  to  redeem  as  standing  in  the  place  of  a 
grantee  of  the  judgment  debtor,  is  not  entitled  to  redeem  upon  a 
mere  equitable  right,  but  he  must  have  the  legal  estate.  (Lathrop 
V.  Ferguson,  22  Wend.  116.) 

The  officer  who  conducts  the  sale  may  authorize  the  deposit  of 
the  redemption  money  with  the  county  clerk,  or  in  a  bank,  and  the 
payment  to  such  person  or  bank  will  be  a  valid  j  ayment.  But  the 
redemption,  to  be  effectual,  must  be  by  payment  of  the  whole  sum  to 
which  the  purchaser  is  entitled  for  the  premises  sought  to  be  re- 
deemed. If  the  calculation  be  made  by  the  party  himself,  and  by 
a  miscalculation  his  payment  faUs  short  of  the  sum  due,  the  redemp- 
tion is  ineffectual  at  law,  and  the  purchaser  who  obtains  the  sher- 
iff's deed  of  the  premises  is  entitled  to  the  legal  estate.  But  if  the 
.sheriff  himself  makes  a  miscalculation  of  the  interest,  and  thereby 
misleads  the  redeeming  party,  the  redemption  is  valid  and  effectual, 
and  the  sheriff  must  make  up  the  deficiency  arising  from  his  own 


460  REDEMPTION  BY  A  CREDITOR. 

mistake.  {Hall  v.  Fisher,  1  Barb.  Ch.  56.  Dickinson  v.  GilH- 
land,  1  Cotoen,  481.  Ex  parte  Peru  Iron  Company,  7  id.  540. 
The  People  v.  Rathhun,  1  Smith,  528.) 

2.  ^7/  a  creditor.  If  the  judgment  debtor  omits  to  redeem  within 
the  year,  the  right  of  redemption  devolves  on  certain  creditors  of 
the  debtor  by  judgment  or  mortgage,  within  three  months  after  the 
expiration  of  the  year.  The  fifteen  months  allowed  to  creditors,  &c. 
are  calendar,  not  lunar  months.  (Snyder  v.  Warren,  2  Coicen^ 
518.)  When  the  last  day  of  the  fifteen  months  happens  on  Sunday, 
the  redemption  must  be  made  the  day  before.  (Tlce  People  v.  Lu- 
ther, 1  Wend.  42.) 

The  provisions  with  respect  to  redemption  by  creditors,  after  the 
expiration  of  the  year  from  the  sale,  are  that  any  creditor,  having 
in  his  own  name,  or  as  assignee,  representative,  trustee  or  otherwise, 
a  decree  in  chancery  or  a  judgment  at  law,  rendered  at  any  time 
before  the  expiration  of  fifteen  months  from  the  time  of  such  sale, 
or  having  a  mortgage  duly  recorded  within  the  same  period,  and 
which  shall  be  a  lien  and  charge  upon  the  premises  sold,  or  upon 
any  parcel  which  shall  have  been  separately  sold,  by  papng  the 
sum  of  money  which  was  paid  on  the  sale  of  such  premises,  or 
upon  any  parcel  which  shall  have  been  separately  sold,  together 
with  the  interest  therecn,  at  the  rate  of  seven  per  cent  a  year  from 
the  time  of  such  sale,  shall  thereby  acquire  all  the  rights  of  the 
original  purchaser,  subject  to  be  defeated  by  any  other  like  cred- 
itor in  the  manner  mentioned  in  the  several  statutes  on  this  subject. 
(3  R.  S.  652,  §  67,  5tk  ed.  Laivs  of  1847,  ch.  410.  L.  of  1836, 
ch.  525.) 

The  statute  points  out  how  one  creditor  may  redeem  from  an- 
other, and  the  evidence  to  be  furnished  to  the  officer  in  all  cases 
of  redemption.     (3  R.  S.  653,  654,  5th  ed.) 

The  deed  of  the  sheriff  is  not  given  until  the  expiration  of  fifteen 
months  from  the  time  of  the  sale.  It  is  then  given  to  the  original 
purchaser,  or  the  redeeming  creditor,  as  the  case  may  be,  and  the 
conveyance  is  declared  to  be  valid  and  effectual  to  convey  all  the 
right,  title  and  interest  which  was  sold  by  the  officer.  {Id.  655, 
§  79,  5th  ed.) 

The  deed  relates  back  to  the  time  of  the  sale,  though  executed 
afterwards,  and  after  the  time  of  redemption  has  expired,  (Jack- 
son V.  Dickinson,  15  John.  309.  Same  v.  Ramsay,  3  Coiven,  75. 
Wright  v.  Douglass,  2  Comst.  373.)     The  sale  and  deed  extin- 


JUDGMENTS  VOID,  OR  ERRONEOUS.  461 

guisli  all  junior  liens  upon  the  premises.  {Ex  j)0,Tte  Stevens,  4 
Cowen,  133.)  The  purchaser  under  a  judgment,  or  the  party  re- 
deeming, as  the  case  may  be,  acquires  all  tlie  title  of  the  judgment 
debtor,  and  takes  the  benefit  of  covenants  and  estoppels  running 
with  the  land.  {Sweet  v.  Green,  1  Paige,  473.  Kellogg  v.  Wood, 
4  id.  578.)  He  takes  the  land  subject  to  all  prior  incumbrances 
and  liens  of  which  he  has  actual  or  constructive  notice.  ( Bartlett 
V.  Gale,  Id.  503.) 

In  general,  objections  to  the  regularity  of  the  sheriif 's  sale  of 
land,  cannot  be  raised  by  strangers  to  the  execution.  {Smith  v. 
McGowan,  3  Barh.  404.)  A  misrecital  of  the  judgment,  as  to  date 
and  amount,  the  recital  being  in  all  other  respects  correct,  will  not 
vitiate  the  sheriff's  deed.  {Jackson  v.  Streeter,  5  Coiven,  529.) 
If  the  deed  contain  a  correct  description  of  the  premises  sold,  a  va- 
riance between  it  and  the  sheriff's  certificate  of  sale  will  not  affect 
the  purchaser's  title.     {Jackson  v.  Page,  4  Wend.  585.) 

The  purchaser  cannot  be  affected  by  any  matter  subsequent  to 
the  sale,  arising  between  the  parties  to  the  judgment,  to  which  he 
is  a  stranger.     {Jackson  v.  Bartlett,  8  John.  361.) 

There  is  a  distinction  between  proceedings  and  judgments  which 
are  absolutely  void,  and  such  as  are  merely  erroneous.  In  the  first 
case  no  title  can  be  acquired  under  a  sale  by  virtue  of  a  void  judg- 
ment; but  if  the  judgment  be  merely  erroneous,  and  be  reversed 
for  such  error  after  the  sale,  and  purchase  by  the  bidder,  the  title 
so  acquired  will  not  be  devested  by  the  reversal.  The  reason  given 
for  this  is,  that  great  inconvenience  would  follow  a  contrary  doc- 
trine, so  that  none  would  buy  of  the  sherifi"  in  such  cases,  and  exe- 
cution of  judgments  would  not  be  done.  It  was  held  in  Drury's 
case,  (8  Co.  142,)  that  if  an  erroneous  judgment  be  given,  and  the 
sheriff,  by  force  of  &.  fieri  facias,  sells  a  term  of  the  defendant,  and 
afterwards  the  judgment  is  reversed  by  a  writ  of  error,  yet  the  term 
shall  not  be  restored,  but  only  the  money,  because  the  sheriff  was 
commanded  and  compelled  by  the  king's  writ  to  sell.  This  is  the 
uniform  current  of  the  authorities,  and  it  is  applied  by  our  courts 
to  the  sale  of  the  fee  simple,  as  well  as  of  term  for  years.  (  Wood- 
cock V.  Bennett,  1  Cowen,  734.      Wood  v.  Jackson,  8  Wend.  9.) 

The  same  distinction  exists  between  void  and  erroneous  process. 
If  the  process  under  which  a  sale  was  made  is  set  aside  for  irregu- 


462  DEED  OF  TIIE  SHERIFF. 

larity,  that  is,  on  the  ground  of  its  being  void,  the  sale  itself  is 
void,  even  in  the  hands  of  an  innocent  purchaser.  But  if  the  pro- 
cess be  merely  erroneous,  as  when  it  wjis  issued,  formerly,  withfjut 
a  scire  facias,  after  a  year  and  a  day  from  the  docketing  of  the 
judgment;  or  when,  under  the  present  practice,  it  is  issued  after 
five  years  from  the  rendering  of  the  judgment,  without  leave  of  the 
court,  the  process  is  only  voidable  on  the  application  of  the  party, 
and  the  sale  is  good,  and  cannot  be  questioned  as  against  a  bona 
fide  purchaser.  {Id.  Jachson  v.  Bartlctt,  8  John.  361.  Same  v. 
DeLancy,  13  id.  537.) 

We  have  seen  already  that  the  sheriff,  in  advertising  real  prop- 
erty for  sale,  must  describe  it  with  common  certainty.  In  his  deed 
to  the  purchaser,  nothing  passes  under  a  general  description  of 
"  all  other  the  land  &c.  of  the  defendant,"  for  the  sheriff  cannot 
sell  under  so  vague  a  description.  In  short,  he  can  sell  nothing 
which  the  creditor  cannot  enable  him  to  describe  with  reasonable 
certainty.     {Jackson  v,  DeLancy,  13  id.  537,) 

The  purchaser  acquires  nothing  but  a  lien  before  the  time  of  re- 
demption has  expired,  (  Vaughn  v,  Ely,  4  Barb.  159.)  And  the 
debtor  is  left  in  the  use  and  enjoyment  of  the  property  during  the 
fifteen  months;  and  his  title  is  not  devested  until  the  expiration 
of  that  time.  But  if  the  real  estate  sold  is  not  redeemed  Avithin  that 
time,  and  the  sheriff  executes  to  the  purchaser  a  deed  of  the  same, 
in  pursuance  of  the  sale,  the  grantee  in  such  deed  is  deemed  vested 
with  the  legal  estate,  from  the  time  of  the  sale  on  the  execution, 
for  the  purpose  of  maintaining  an  action  for  any  injury  to  such  real 
estate,  (2  R.  S.  373,  §  78.  3  id.  655,  5th  ed.  Rich  v.  Baker,  3 
Den.  79.  Boyd  v.  Eoyt,  5  Pai(/e,  65.  Talbot  v.  Chamberlain,  3 
id.  219.  2  R.  S.  337,  §  23.)  The  statute  thus  wisely  converts 
the  fiction  of  a  title  by  relation  to  the  time  of  the  sale,  into  an  in- 
strument of  justice. 

The  deed  of  the  sheriff  should  recite  the  judgment  and  execu- 
tion, showing  the  time  when  the  lien  attached,  the  sale  and  pur- 
chase, and  redemption,  if  any,  and  then,  in  consideration  thereof, 
and  of  the  payment  of  the  sum  bid  and  paid,  and  of  the  statute  in 
such  case  made  and  provided,  should  grant  and  convey  unto  the 
grantee,  his  heirs  and  assigns  forever,  all  the  estate,  right,  title 
and  interest,  which  the  judgment  debtor  had  in  the  premises  on. 


TAX  SALES.  463 

the  day  of  the  docketing  of  the  said  judgment,  or  at  any  time  after- 
wards. It  should  contain  a  full  and  accurate  description  of  the 
premises.  It  should  be  proved  or  acknowledged  like  other  deeds, 
and  recorded  in  the  clerk's  office  of  the  county  where  the  lands  are 
situated. 

Tlie  sale  of  lands  for  taxes  by  the  comptroller,  occasions  the 
alienation,  every  year,  of  large  tracts  of  land.  It  is  not  proposed 
to  analyze  the  laws  on  this  subject  as  they  have  been  repeatedly 
modified.  The  act  of  1850,  amending  the  revised  statutes,  (1  B.  S. 
411,  §  81,)  enacts,  that  conveyances  of  lands  sold  for  taxes  shall  be 
executed  by  the  comptroller,  under  his  hand  and  seal,  and  the  exe- 
cution thereof  shall  be  -odtnessed  by  the  deputy  comptroller,  state 
engineer  and  surveyor  or  treasurer,  and  every  conveyance  of  land 
sold  for  taxes  heretofore  or  hereafter  executed  by  the  comptroller, 
either  in  his  own  name  or  in  the  name  of  the  people  of  this  state, 
shall  be  pi^esumptive  evidence  that  the  comptroller  had  authority 
to  sell  and  convey  the  land  described  in  it,  for  arrears  of  taxes 
charged  thereon,  and  that  all  proceedings,  things  and  notices  re- 
quired by  law  to  be  had,  done  or  given,  prior  to  the  execution  of 
such  conveyances  by  the  comptroller,  have  been  had,  done  and  giv- 
en, as  required  by  law;  but  such  presumption  may  be  rebutted  by 
legal  evidence.  But  this  section  shall  not  be  applicable  to  any  such 
conveyance,  in  case  the  grantee  therein  or  those  claiming  under  him 
shall  neglect  or  refuse  to  release  to  the  owner,  occupant  or  claimant 
of  the  premises  described  therein,  or  any  part  thereof,  said  prem- 
ises, upon  being  paid,  or  upon  a  tender  thereof  made,  the  purchase 
money  named  in  said  conveyance,  with  interest  -at  the  rate  of  ten 
per  cent  per  annum,  and  the  costs  of  any  suit  commenced  for  the 
recovery  of  the  said  premises,  or  any  part  thereof  •  (L.  of  1850,  ch. 
183,  §  81.  See  Tallman  v.  White,  2  Comst.  QQ,  which  arose  before 
the  S\st  section  was  amended.) 

The  revised  statutes,  before  their  amendment  in  1850,  made  the 
comptroller's  deed  conclusive  evidence  of  the  regularity  of  the  sale. 
This  conclusiveness  has  been  held  only  to  apply  to  the  proceedings 
to  be  had  after  the  right  and  power  to  sell  are  acquired.  It  is  not 
conclusive  or  even  presumptive  evidence  of  the  regularity  of  the 
assessment.     {Tallman  v.  White,  supra.) 

There  are  a  variety  of  cases  where  the  real  estate  is  bound  by 
corporation  assessments  or  by  taxes.     {Mayor  of  Troy  v.  The  Mu- 


464  TAX  SALES.    EMINENT  DOMAIN. 

tual  Bank,  6  Smith,  387.)  In  some  cases,  it  is  presumed,  the 
statute  provides  for  tlie  effect  of  the  deed  given  on  a  side  fur  non- 
payment of  taxes  or  assessments.  If  there  be  no  provision  in  the 
act,  the  common  law  must  prevail.  In  the  absence  of  any  legisla- 
tion on  the  subject,  the  purchaser  is  bound  to  inquire  into  the 
authority  of  the  officer  who  sells,  and  if  that  is  insufficient  the  sale 
is  void.  Analogous  questions  have  repeatedly  arisen  and  been  de- 
cided in  conformity  to  Ihis  view  of  the  subject,  by  the  sui)reme 
court  of  the  United  States.  {Stead's  Ex'rs  v.  Course,  4  Crunch, 
403.  Williams  v.  Peyton's  Lessee,  4  Wheat.  11.)  The  general 
principle  is,  in  the  case  of  a  naked  power  not  coupled  with  an  in- 
terest, that  every  prerequisite  to  the  exercise  of  the  power  should 
precede  it.  The  party  who  sets  up  a  title  must  furnish  the  evidence 
necessary  to  support  it.  If  the  validity  of  a  deed  depends  on  an 
act  in  j)ais,  the  party  claiming  under  it  is  as  much  bound  to  prove 
the  performance  of  the  act,  as  he  would  be  bound  to  prove  any  mat- 
ter of  record  on  which  the  validity  of  the  deed  may  depend.  For 
example,  if  the  lands  be  sold  for  the  non-payment  of  taxes,  the 
marshal's  deed  is  not  evidence,  even  2y7'ima  facie,  that  the  prere- 
quisites required  by  law  have  been  complied  with;  but  the  party 
claiming  under  it  must  show  positively  that  they  have  been  com- 
plied with.     {Williams  v.  Peyton's  Lessee,  supra?) 

The  rule  is  substantially  the  same  in  this  state.  The  recitals  in 
the  deed  given  on  such  sale  are  not  evidence  of  the  facts  stated  in 
them.  {Jackson  v.  Shepard,  9  Coiven,  88.  Jackson  v.  Esty,  7 
Wend.  148.  Leland  v.  Bennett,  5  Hill,  286.  Bush  v.  Davison, 
16  Wend.  550.     Varick  v.  Tallman,  2  Barh.  113.) 


CHAPTER  VIII. 

OF    ALIENATION    OF    REAL    PROPERTY   THROUGH    THE    EXERCISE    OF 
THE    RIGHT    OF    EMINENT    DOMAIN. 

The  right  of  eminent  domain  is  defined  to  be  the  ultimate  right 
of  the  sovereign  power  to  appropriate  not  only  the  public  property 
but  the  private  property  of  all  persons  within  the  territorial  sove- 
reignty, to  public  purposes.  (  Vattel's  Laiv  of  Nations,  hook  1,  ch. 
20,  §  244,  approved  by  Story,  J.  in  Charles  River  Bridge  v.  War- 
ren Bridge,  11  Peters,  641.)     No  civilized  state  can  exist  without 


RIGHT  OF  EMINENT  DOMAIN.  455 

the  enjoyment  of  this  right.  The  various  improvements  which  are 
essential  to  the  well  being  and  prosperit}^  of  a  community  rest  upon 
It.  Without  it,  public  highways,  turnpike  roads,  rail  roads  and 
canals,  and  the  various  public  buildings  which  are  needed  for  the 
convenience  of  the  administration  of  justice,  or  of  the  public  chari- 
ties of  the  country,  could  not  be  made  and  preserved.  If  govern- 
ment was  required,  in  every  case,  to  obtain  the  assent  of  the  owner 
of  real  estate,  which  might  be  wanted  for  any  of  these  purposes,  or 
for  fortifications,  it  would  be  subjected  to  intolerable  delays,  and  to 
gross  and  unreasonable  exactions,  or  be  obstructed  altogether. 

The  necessity  for  some  provision  on  this  subject,  as  well  for  the 
public  as  for  the  security  of  individuals,  was  foreseen  at  an  early 
day,  and  accordingly  it  was  provided  by  the  fifth  amendment  to 
the  constitution  of  the  United  States,  that  private  property  shall 
not  be  taken  for  public  use,  without  just  compensation.     This  pro- 
vision is  supposed  not  to  embrace  cases  arising  under  the  state  o-qv- 
ernments,  but  to  be  applicable  solely  to  such  as  arise  under'^the 
general  government.     {Barron  v.  Mayor  of  Baltimore,  7  Pet  243 
Livingston  v.  Mayor  of  New  York,  8  Wend.  S5.     2  Coioen,  818  ) 
It  assumes  that  government  had  the  right  already  from  the  'nature 
of  sovereignty,  and  it  was  designed  to  impose  the  limitation  of  just 
compensation  upon  the  exercise  of  the  right.     The  constitution  of 
this  state,  while  it  asserts  the  original  and  ultimate  property  in  aU 
lands  withm  its  jurisdiction,  to  be  in  the  people,  contains  the  same' 
limitation  as  to  the  powers  of  the  government  to  take  private  prop- 
erty for  public  use,  as  is  contained  in  the  amendment  to  the  con- 
stitution of  the  United  States,  already  referred  .to.     It  is  in  truth 
merely  the  assertion  of  a  great  principle,   which  governs  the  ac- 
tions of  all  enlightened  governments. 

There  never  has  been  any  doubt  with  respect  to  the  exercise  of 
the  right  of  eminent  domain  in  this  state,  when  the  property  was 
to  be  applied  for  the  public  use,  unconnected  with  individual  profit 
The  taking  of  land  without  the  consent  of  the  owner,  for  the  pur- 
pose of  laying  out  highways,  and  the  erection  of  bridges,  and  of 
gravel  and  other  materials  for  their  construction  and  reparation 
was  exercised  as  a  right  before  the  constitution  was  formed  and 
was  regulated  by  statute.     Nor  was  the  right  questioned  to  lay  out 
B.  private  ivay  for  an  individual  occupant.     The  necessity  for  the 
road,  m  all  cases,  had  to  be  determined  by  local  ofiicers  chosen  by 
the  people,  and  suitable  provision  was  contained  in  the  various  stat- 
WlLL. — 30 


4GG  RIGHT  OF  EMINENT  DOMAIN. 

utes  on  the  subject,  for  making  compensation  to  the  owner  for  the 
easement  thus  obtained.  These  laws  existed  in  the  time  of  the 
colony,  and  have  continued  without  interruption  as  to  the  principle 
involved,  to  the  present  day.  (2  Laivs  of  N.  Y.  664,  §  19,  Van 
Sell.  ed.  Id.  723,  §  2.  1  Laws  of  N.  Y.  139,  141,  §§  2,  13,  Jones 
&  VaricFs  ed.  Laws  of  1784.  1  Greenl.  108,  §  13.  2  II.  L.  of 
1813,  ]j-  276,  §  20.  1  R.  S.  517,  §§  77,  79.  2  id.  402,  403,  5th 
ed.)  These  laws  above  referred  to  cover  the  entire  period  from 
1772  to  the  present  day. 

In  the  case  of  Taijlor  v.  Porter,  (4  HiU,  140,)  it  was  decided  by 
a  majority  of  the  supreme  court,  that  the  statute  of  1830,  author- 
izing a  private  road  to  be  laid  out  over  the  lands  of  a  person  without 
his  consent,  is  unconstitutional  and  void.  The  chief  justice  dis- 
sented from  the  decision,  and  supported  his  views  by  reasoning 
which  has  never  been  answered.  The  decision  itself  took  the  pub- 
lic by  surprise,  and  its  correctness  was  very  generally  denied,  Tliis 
decision  was,  in  1846,  brought  to  the  notice  of  the  convention  then 
in  session  to  revise  the  constitution.  {Atlas  ed.  103.)  The  con- 
stitution, as  adopted  in  that  year,  contains  a  provision  that  private 
roads  may  be  opened  in  the  manner  to  be  prescribed  by  law,  the  ne- 
cessity for  the  road  and  the  amount  of  all  damages  to  be  sustained 
by  the  opening  of  it,  being  first  determined  by  a  jury  of  freehold- 
ers.    {Const,  of  1846,  Art.  1,  §  7.) 

The  same  principle  was  made  applicable  to  lands  taken  for  turn- 
pike roads,  and  the  bridges  connected  with  them.  The  charters  of 
the  early  companies  contained  suitable  provisions  on  this  subject, 
and  at  length,  in  1807,  a  general  act  was  passed,  (1  R.  L.  231,  §  3,) 
authorizing  the  company  to  enter  upon  the  land  for  the  purpose  of 
making  the  road,  if  no  person  was  living  on  the  land  who  had  au- 
thority to  receive  the  damages;  but  the  title  to  the  land  was  not 
vested  in  the  company,  even  for  the  purpose  of  the  road,  during  the 
existence  of  the  charter,  until  actual  payment  of  the  damages,  and 
the  moment  the  owTier  made  proper  demand  of  the  damages,  and 
the  same  were  not  paid,  he  might  bring  an  action  for  the  recovery 
of  the  land.     {3IeseroIe  v.  TJie  Mayor  of  Brooklyn,  8  Paige.  198.) 

A  turnpike  road  being  a  substitute  for  the  former  highway,  and 
being  open  for  all  to  travel  on,  was  deemed  a  public  road  for  all 
purposes.  It  was  never  seriously  doubted  that  the  legislature  had 
the  power,  even  after  the  adoption  of  the  constitution  of  1821,  to 
authorize  the  taking  of  land  for  a  turnpike,  without  the  consent  of 


EIGHT  OF  EMINENT  DOMAIN.  467 

the  owner,  on  making  just  compensation.  The  constitution  of 
1777  did  not  contain  the  prohibition  against  taking  private  property 
for  public  use,  and  the  clause  was  first  inserted  in  the  constitution 
of  1821,  (Art.  7,  §  7,)  in  the  same  form  that  it  exists  in  the  pres- 
ent constitution.  Yet  all  the  early  charters  for  turnpike  roads  con- 
tain the  authority  to  take  land  for  the  purpose  of  the  road,  on 
making  just  compensation.  The  fact  that  individual  stockholders 
were  supposed  to  be  entitled  to  derive  a  benefit  from  the  use  of 
the  road  in  the  shape  of  tolls,  did  not  derogate  from  the  principle 
that  the  purpose  to  which  the  land  was  applied  was  a  public  pur- 
pose. These  benefits  were  a  remuneration  for  their  capital  invested 
in  the  road,  which  relieved  the  public  from  the  expense  of  con- 
structing and  keeping  it  in  repair. 

After  the  principle  forbidding  private  property  to  be  taken  for 
public  use  without  just  compensation  came  to  be  inserted  in  the 
organic  law,  it  was  insisted  that  the  legislature  could  not  exercise 
the  right  of  eminent  domain  in  favor  of  corporations,  whether  pri- 
vate or  municipal.  It  was  contended  that  the  statute  must  desig- 
nate the  specific  land  to  be  taken,  and  that  the  legislature  could 
not  delegate  the  power  to  the  corporation  to  make  the  location  and 
selection.  Had  the  objection  prevailed,  it  is  quite  obvious  that  no 
rail  road  could  have  been  constructed  in  this  state,  without  an  ex- 
penditure of  money  that  would  have  rendered  the  franchise  value- 
less. But  the  objection  was  overruled  by  the  highest  court  of  the 
state.  It  was  decided  that  the  legislature  may  grant  to  such  corpo- 
ration the  power  to  appropriate  private  property  necessary  for  their 
use,  on  making  compensation  as  required  by  the  constitution  ;  and 
that  such  power  may  be  gi-anted  by  a  general  act  providing  for  the 
creation  of  an  indefinite  number  of  corporations.  (The  Buffalo  et 
al.  Rail  Road  Co.  v.  Brainard  and  others,  5  Selden,  100.)  This 
subject  was  very  fully  discussed  in  the  early  case  of  Bloodgood  v. 
The  Mohaioh  and  Hudson  Rail  Road  Co.  (18  Wend.  9-78.)  That 
case  was  concluded  by  the  court  of  errors,  by  the  adoption  of  a  res- 
olution declaring,  in  substance,  that  the  legislature  of  this  state  have 
the  constitutional  power  to  authorize  the  taking  of  private  property 
for  the  purj^ose  of  making  rail  roads,  or  other- public  improvements 
of  the  like  nature;  whether  such  improvements  be  made  by  the 
state  itself,  or  through  the  medium  of  a  corporation,  or  joint  stock 


4G8  RIGHT  OF  EMINENT  DOMAIN. 

company,  on  making  ample  provision  for  a  just  compensation  for 
the  property  taken  to  tlie  owners  thereof. 

The  same  doctrine  has  been  applied,  by  the  highest  court  of  the 
state,  to  municipal  corporations.  Thus,  it  was  decided  in  Hey- 
zoard  v.  The  Mayor  dc.  o/Neiv  York,  (3  Seidell,  214,)  that  the  legis- 
lature has  the  power  to  authorize  a  municipal  corporation  to  acquire 
a  fee  simple  to  lands  of  private  persons  required  for  public  purposes, 
upon  the  payment  of  a  just  compensation,  and  when  so  acquired, 
no  reversionary  estate  remains;  and  if  the  public  exigencies  re- 
quire the  conversion  to  some  other  purpose  they  may  be  so  converted. 

The  right  of  eminent  domain  does  not  imply  a  right  in  the  sove- 
reign power  to  take  the  property  of  one  citizen  and  transfer  it  to 
another,  even  for  a  full  compensation,  where  the  public  interest  will 
be  in  no  w^ay  promoted  by  such  transfer.  But  if  the  public  interest 
will  be  in  any  way  promoted  by  the  taking  of  private  property,  it 
rests  in  the  wisdom  of  the  legislature  to  determine  whether  the  ben- 
efit to  the  public  will  be  of  sufficient  importance  to  render  it  expe- 
dient for  them  to  exercise  the  right  of  eminent  domain.  (Beehman 
V,  Saratoga  and  Sch.  Hail  Road  Co.  3  Paige,  73.)  No  just  sove- 
reign would  take  the  property  of  the  subject,  for  the  public  use, 
without  his  consent,  unless  a  ftiir  equivalent  w^as  returned.  The 
question  under  our  constitution  is  whether  the  payment  of  the  com- 
pensation should  precede  the  taking  of  the  private  property  for 
public  use,  or  be  concurrent  with  such  taking;  or  whether  it  is 
enough  that  provision  be  made  for  its  certain  payment.  In  the 
case  of  Rogers  v.  JSradshaiv,  (20  John.  735,)  the  court  of  errors 
decided  that  where  private  property  was  taken  for  public  use,  it  was 
not  necessary  that  the  amount  of  compensation  should  be  actually 
ascertained  and  paid  before  the  appropriation;  but  that  it  was  suf- 
ficient if  a  certain  and  adequate  remedy  was  provided,  by  which  the 
individual  could  obtain  such  compensation  without  unreasonable 
delay.  This  principle  was  api:)roved  in  the  later  case  of  Bloodgood 
\.  Mohawk  and  Hudson  R.  R.  Co.  (18  Wend.  17.) 

It  is  the  better  opinion  that  an  act  authorizing  the  taking  of  pri- 
vate property  for  public  use  is  not  valid,  unless  it  or  some  other 
act  contains  a  suitable  and  efficient  remedy  for  such  compensation. 
It  is  not  enough  to  cast  the  party,  whose  property  is  thus  taken, 
upon  the  doubtful  and  feeble  remedy  arising  from  the  moral  duty 


RIGHT  OF  EMINENT  DOMAIN.  469 

of  the  legislature  to  inake  it.  The  legislature  may  authorize 
an  entry  on  tlie  lands  of  a  person  for  the  purpose  of  examination, 
without  previous  payment;  hut  that  is  a  different  thing  from  an 
appropriation  of  the  land  to  the  puhlic,  devesting  the  title  of  the 
owner.  (/S'ee  Bloodgood  v.  M.  and  H.  R.  B.  supra;  Jerome  v. 
Boss,  7  John.  Ch.  344;  2  Kent's  Com.  339,  note.) 

It  would  seem,  on  principle,  that  when  the  parties  cannot  agree, 
that  a  regular  appraisal  of  the  damages,  followed  up  by  payment 
or  its  equivalent,  a  tender,  whore  acceptance  of  the  sum  awarded 
has  been  declined,  is  essential  to  devest  the  owner,  and  to  vest  the 
title  in  the  corporation.  (  Wheeler  v.  The  Rochester  and  S.  B.  B. 
12  Barb.  227.) 

The  title  acquired  by  a  corporation  for  lands  necessary  for  a  rail 
road,  is  an  estate  in  fee  simple,  whether  the  corporation  be  in  terms 
unlimited  in  its  duration,  or  confined  to  a  definite  j)eriod.  It  may 
receive  a  less  estate  by  grant,  if  it  be  so  stipulated  in  the  deed;  but 
a  corporation,  although  created  but  for  a  Hmited  period,  may  ac- 
quire the  fee  simple  to  lands  necessary  for  its  use.  {Nicoll  v.  The 
N.  Y.  and  Erie  B.  B.  Co.  2  Kern.  121.  The  Beople  v.  Mauran, 
5  Den.  389.)  Such  a  corporation  has  a  fee  simple  for  the  purpose 
of  alienation,  but  a  determinable  fee  for  the  purpose  of  enjoyment. 

Although  the  lands  be  thus  compulsorily  obtained,  yet  where 
the  title  has  vested  in  the  corporation  by  the  payment  of  the  just 
compensation,  all  the  incidents  of  ownership  follow.  Should  the 
exigences  of  the  company  make  it  necessary,  they  may  alien  such 
lands  in  fee  simple.  In  the  case  of  the  Almshouse  in  New  York, 
it  had  been  used  for  twenty-seven  years,  and  was  then  moved  to 
another  site,  and  yet  the  title  to  the  original  site  was  not  thereby 
lost.     {Heyward  v.  Tlie  Mayor  do.  of  N.  Y.  3  Seld.  214.) 

The  statutes  of  this  state  make  ample  provision  for  the  case  of 
persons  laboring  under  the  disability  of  infancy,  idiocy,  insanity, 
&c.,  when  it  is  necessary  to  take  their  lands  for  the  purpose  of  a 
rail  road;  and  also  for  the  case  of  non-residents.  But  the  further 
consideration  of  this  branch  of  the  subject  does  not  belong  to  this 
work.  (Laws  of  1850,  ^j^J-  216,  217.  Id.  of  1854,  ch.  282,  p. 
608  et  seq.) 

If  the  title  be  acquired  by  an  amicable  agreement  between  the 
parties,  the  deed  will  be  in  the  form  of  other  deeds  to  a  corpora- 
tion; and  it  will  carry  the  fee  without  words  of  limitation.  {Nicoll 
v.  N.  Y.  and  Erie  B.  B.  supra.)     If,  however,  it  be  acquired  by 


470  ALIENATION  BT  DEVISE. 

the  exei'cise  of  the  right  of  eminent  domain,  the  proceedings  should 
be  set  forth  at  large,  showing  jurisdiction  in  the  officer,  and  the 
mode  in  which  it  was  exercised.  (See  the  form  of  a  record  of  an 
assessment  of  damages  in  Adams  v.  Saratoga  and  Washington 
B.  R.  Co.  11  Barb.  414-417  et  seq.,  and  remarks  hy  Willard,  J. 
in  that  case;  and  the  remarks  of  the  judge  in  Buell  v.  The  Trus- 
tees of  the  Village  of  Lochport,  4  Seld.  58;  Dyckman  v.  The  May- 
or of  N.  York,  1  id.  434,  and  remarks  of  Foote,  J.  in  that  case, 
page  440.)     [See  Appendix.] 


CHAPTER  IX. 

OF    THE    ALIENATION    OF    KEAL    ESTATE    BY   DEVISE. 

Section  I. 
Of  the  Nature  of  a  Devise. 

The  mode  of  alienation,  of  which  we  have  been  treating  hereto- 
fore, in  cases  where  it  was  made  by  the  parties  possessing  the  title 
at  the  time,  in  general,  assumes  that  the  instrument  of  conveyance 
will  take  eifect  during  the  life  of  the  grantor.  A  devise,  on  the 
contrary,  is  a  disposition  of  real  jiroperty  in  a  person's  last  will  and 
testament,  to  take  effect  on  the  death  of  the  devisor. 

The  law  has  not  prescribed  any  particular  form  in  which  a  de- 
vise must  be  framed.  It  must  be  in  waiting,  and  must  indicate  the 
intention  of  the  testator  to  dispose  of  his  lands  after  his  decease. 
No  entry  is  required  by  the  devisee  to  render  the  transfer  of  the  fee 
effectual.  The  devise  interrupts  the  descent  of  the  land  to  the 
heir;  and  the  de\T[see  may  bring  an  action  against  the  heir  to  re- 
cover the  estate  devised,  before  the  will  has  been  admitted  to  pro- 
bate; The  title  of  the  devisee  is  derived  from  the  will,  and  not 
from  the  decree  of  the  surrogate's  court,  A  will  of  freehold  lands 
need  not  be  proved  before  the  surrogate,  in  order  to  perfect  the  ti- 
tle of  the  devisee;  though  it  is  usual,  and  always  recommended, 
that  a  will  merely  disposing  of  real  estate,  should  be  proved  and 
recorded  according  to  the  provisions  of  the  revised  statutes.  This 
is  important  not  only  to  perpetuate  the  evidence  of  the  due  execu- 
tion of  the  will,  but  to  defeat  any  conveyance  that  might  be  made 


DEVISE,  LEX  REI  SIT^.  .      47^ 

by  the  heir  after  the  death  of  the  testator,  to  a  party  purchasing  in 
good  faith,  without  knowledge  of  the  will.      Unless  the  will  is 
proved  and  recorded  in  the  proper  court  within  four  years  after  the 
death  of  the  testator,  in  the  manner  prescribed  by  the  act,  the  title 
of  a  purchaser  in  good  faith,  and  for  a  valuable  consideration,  from 
the  heirs,  will  prevail  over  that  of  the  devisee.     (2  R.  S.  749,  §  3.) 
In  a  contest  between  the  devisee  and  the  heir,  the  probate  copy 
of  i\iQ  will  is  not  necessary  to  be  produced;  nor  is  it  evidence,  un- 
less it  has  been  proved  before  the  surrogate  as  a  will  of  real  estate, 
on  the  requisite  citation  to  the  heirs.     It  is  otherwise  with  respect 
to  a  will  of  personal  property.     The  probate  of  a  will  of  personal 
property,  whether  obtained  by  a  summary  or  a  plenaiy  proceeding, 
if  granted  by  the  proper  court,  is  conclusive  evidence  of  the  due 
execution  of  the  will  and  of  the  testamentary  capacity  of  the  testa- 
tor.    {Bogardus  v  Clark,  4  Paige,  623.     Muir  v.  The  Trustees  of 
the  Orphan  Asylum,  3  Barb.  Ch.  477.     Cotton  v.  Ross,  2  Paige, 
396.      Vanderpoel  v.  Van    ValTcenhurgh,  2  Seld.  190.) 

A  court  of  equity  frequently  decides  upon  the  validity  of  a  wiU 
of  real  estate,  when  the  question  comes  before  it  collaterally;  but 
if  the  heir  insists  upon  the  invalidity  of  the  will  in  his  answer,  an 
issue  is  awarded  to  try  the  question  at  law.     It  was  well  settled 
under  the  former  practice  of  the  court,  and  the  principle  still  re- 
mains sound,  that  the  heir  cannot  go  into  equity  to  set  aside  a  will 
on  the  ground  of  the  incompetency  of  the  testator,  if  the  defendant 
makes  the  objection  in  due  time.     {Cotton  v.  Ross,  supra.)     The 
validity  of  the  will,  and  every  question  affecting  capacity,  are  di- 
rectly involved  in  an  action  by  the  devisee  to  recover  the  estate  de- 
vised to  him,  whether  the  action  be  against  the  heir  or  any  other 
person.     Those  questions  may  be  discussed  in  an  action  before  the 
proper  court  to  prove  the  will  as  a  will  of  real  estate,  as  wUl  be 
shown  more  fully  in  a  subsequent  section. 

A  will  of  immovable  property,  that  is,  a  devise,  is  in  general 
governed  by  the  lex  rei  s^itoi.  The  law  of  the  place  where  such 
property  is  located,  by  the  rules  of  the  common  law,  governs  as  to 
the  capacity  or  incapacity  of  the  testator,  the  extent  of  his  power 
to  dispose  of  the  property,  and  the  forms  and  solemnities  necessary 
to  give  the  will  effect.  (1  Jarman  on  Wills,  1.  Stor7j  on  Conflict 
of  Laws,  §  474.  Holmes  v.  Remsen,  4  John.  Ch.  460;  S.  C  20 
John.  229.     McCormick  v.  Sullivant,   10  Wheat.  192.  '  U.  States 


472  BEQUEST.    LEX  DOJ^IICILII. 

V.  Crosby,  7  CrancJi,  115.  Clark  v.  Graham,  6  Wheaton  bll. 
Kerr  V.  Devisees  of  Moon,  9  id.  5G5.)  In  some  of  tlie  states  it  is 
understood  there  are  statutes  changing  the  above  rule,  but  in  this 
state  the  doctrine  of  the  common  law  prevails. 

If  the  property  disposed  of  by  the  will  be  personal,  or  rather 
movable  property,  the  lex  domicilii  prevails.  The  cases  before  cited 
show  that  with  respect  to  a  bequest  of  personal  property,  or  the 
succession  to  it  on  the  death  of  the  intestate,  the  law  of  the  domicil 
of  the  testator  or  intestate  controls.  This  appears  to  be  the  general 
rule  in  all  civilized  countries,  and  may  be  said  to  be  a  part  of  the 
jus  gentium.     {Ennis  v.  Smith,  14  Eoio.  TJ.  S.  Rep.  400.) 

The  presumption  of  law  is  that  the  domicil  of  origin  is  retained, 
until  residence  elsewhere  has  been  shown  by  him  who  alleges  a 
change  of  it.  But  residence  elsewhere  repels  the  presumption,  and 
caste  upon  him  who  denies  it  to  be  a  domicil  of  choice,  the  burden 
of  disproving  it.  The  place  of  residence  must  be  taken  to  be  the 
domicil  of  choice,  unless  it  is  proved  that  it  was  not  meant  to  be  a 
principal  and  permanent  residence.     {Id.  421  et  seq.) 

The  question  of  domicil  is  much  more  a  question  of  fact  than  of 
law.  It  depends  on  intention,  and  on  the/aci  of  actual  residence. 
Intention  alone  will  not  work  a  change  of  domicil;  nor  will  the  re- 
moval of  a  person  from  one  place  to  another,  for  temporary  pur- 
poses, and  with  no  intention  to  break  up  the  original  domicil.  The 
original  domicil  remains  until  another  has  been  acquired.  {See 
Bempde  v.  Johnstone,  3  Vesey,  201.  Munroe  v.  Douglass,  5 
Mad.  379.) 

^  Section  II. 

Of  the  Parties  to  a  Devise. 

To  enable  a  party  to  devise  his  real  estate  he  must  be  of  sound 
mind,  and  not  labor  under  any  disability,  as  infancy  or  coverture; 
and  the  party  to  whom  the  estate  is  devised  must  be  capable  of 
taking  by  that  form  of  alienation.  This  matter  is  in  this  state 
regulated  by  statute.  It  is  enacted  that  all  persons  except  idiots, 
persons  of  unsound  mind,  married  women  and  infants,  may  devise 
their  real  estate  by  a  last  will  and  testament,  duly  executed  accord- 
ing to  the  provisions  of  law.     (2  R.  S.  5&.) 

The  first  two  grounds  of  disability  embrace  every  case  of  testa- 
mentary incapacity,  such  as  idiocy,  lunacy  or  unsoundness  of  mind, 


PARTIES  TO  A  DEVISE.  473 

whether  caused  by  old  age  or  other  infirmity.  This  branch  of  the 
subject  belongs  to  works  on  the  probate  of  wills  in  the  surrogates' 
courts,  and  is  fully  discussed  in  Willard  on  Executors,  QQ  et  seq. 
to  which,  and  the  cases  there  cited,  the  reader  is  referred.  The  pre- 
sumption of  law  is  that  every  person  possesses  the  requisite  capacity 
imless  the  contrary  appears.  The  onus  is  cast  upon  the  party  who 
impeaches  the  will,  to  make  out  the  fact  of  incapacity.  All  per- 
sons except  those  laboring  under  one  or  more  of  the  disabilities 
referred  to  are  expressly  empowered  to  make  a  will. 

The  statute  which  authorizes  the  father  to  dispose  of  the  custody 
and  tuition  of  his  infant  child  during  its  minority,  is  not  confined 
to  such  father  as  is  of  full  age,  but  is  expressly  extended  to  a  father 
who  is  a  minor.  This  disposition  is  to  be  by  deed  or  last  will,  and 
as  a  male  must  be  of  the  age  of  eighteen  years  or  upwards,  in  order 
to  make  a  valid  will  of  personal  estate,  he  cannot  make  a  testamen- 
tary appointment  of  a  guardian  under  that  age.  (2  i?.  S.  GO,  150. 
Willard  on  Executors,  453.) 

The  disability  of  coverture,  which  was  general  in  1830  when  the 
statutes  were  revised,  has  been  in  a  great  measure  removed  by  sub- 
sequent statutes.  The  act  of  1849,  to  amend  the  act  for  the  more 
efi'ectual  protection  of  the  property  of  married  women,  {Laivs  of 
1849,  p.  528,)  permits  a  married  woman  to  take  by  inheritance  or 
by  giftj  grant,  devise  or  bequest,  from  any  person  other  than  her  hus- 
band, and  hold  to  her  sole  and  separate  use,  and  convey  and  devise 
real  and  personal  property,  and  any  interest  or  estate  therein,  and  the 
rents,  issues  and  profits  thereof,  in  the  same  manner  and  wdth  the  like 
efi'ect  as  if  she  were  unmarried.  And  such  real  estate  is  not  sub- 
ject to  the  disposal  of  the  husband,  nor  is  it  liable  for  his  debts. 
The  will  of  a  feme  covert,  made  in  pursuance  of  the  above  statute, 
like  a  will  made  in  pursuance  of  a  power,  should  be  admitted  to 
probate  in  the  court  of  the  proper  surrogate.  (  Waters  v.  Cidlen, 
2  Bradf.  354.  Van  Wert  v.  Benedict,  Id.  114.)  In  one  of  the 
above  cases,  the  surrogate  of  New  York  treated  the  act  of  1849  as 
a  substantial  repeal  of  the  restriction  contained  in  the  revised  stat- 
utes against  the  validity  of  a  will  made  by  a  married  woman  in 
regard  to  real  and  personal  property.  He  considered  it  as  removing 
the  personal  disability,  and  did  not  think  it  was  limited  to  subse- 
quently acquired  property.  Be  this  as  it  may,  the  statute  of  18G0, 
ch.  90,  is  in  terms  made  applicable  not  only  to  such  property  as  the 
maiTied  woman  owns  as  her  sole  and  separate  property;  to  that 


474  PARTIES  TO  A  DEVISE. 

■which  comes  to  her  by  descent,  devise,  bequest,  gift  or  graut ;  to  tliat 
which  she  acquires  by  her  trade,  business.  Labor  or  services  carried  ou 
or  performed  on  her  sole  or  separate  account;  but  also  to  that  which 
a  married  woman  in  this  state  owns  at  the  time  of  her  marriaye. 
It  declares  that  it  shall  be  and  remain  her  sole  and  separate  prop- 
erty, and  may  be  used,  collected  and  invested  by  her  in  her  own 
name;  and  shall  not  be  subject  to  the  interference  or  control  of  her 
husband,  or  liable  for  his  debts,  except  such  debts  as  may  have  been 
contracted  for  her  support  of  herself  or  her  children,  by  her  as  his 
agent. 

We  have  seen,  in  a  former  part  of  this  treatise,  that  with  respect 
to  her  real  estate,  a  married  woman  may  convey  it  by  deed  in  ail 
respects  as  if  she  were  sole  and  unmarried.  It  follows,  by  parity 
of  reasoning,  that  she  may  devise  it  in  the  same  manner.  Her  will 
is  subject  to  all  the  incidents  of  that  of  a  single  woman.  If  proved 
before  the  surrogate,  the  citation  should  go  to  her  heirs,  which  in 
this  case  embraces  her  late  husband,  who,  in  certain  cases,  succeeds 
to  her  estate  as  heir.     {L.  of  1860,  ^j.  159,  §  11.) 

In  considering  who-  are  capable  of  being  devisees,  under  a  will 
of  real  estate,  the  subject  naturally  divides  itself  into  two  branches: 
1,  with  regard  to  natural  persons;  and  2,  with  regard  to  corpo- 
rations. 

1.  All  natural  2^er sons  who  are,  at  the  time  when  a  will  is  made, 
capable  of  acquiring  lands  by  purchase,  such  as  infants  &c.  may  be 
devisees.  Under  this  rule  j^osthttmous  children  are  embraced.  The 
revised  statutes  permit  them  to  inherit,  when  no  provision  is  made 
for  them,  or  they  are  not  mentioned  in  the  will;  and  thus  by  direct 
implication  allow  them  to  be  devisees.  (2  B.  S.  65,  §  49.  Mitch- 
ell V.  Blair,  5  Paige,  bSQ.) 

A  ma^-ried  ivoman  may  take  by  devise  from  her  husband;  for  it 
does  not  take  effect  till  his  death.  Of  course  she  may  take  from 
any  other  person.  The  same  is  true  of  persons  laboring  under  the 
diability  of  idiocy,  lunacy,  &c. 

An  illegitimate  may  take  by  devise,  whether  he  is  in  esse  and  has 
acquired  a  name  or  not;  if  he  be  so  described  as  to  remove  all  un- 
certainty as  to  the  person  intended.  It  was  at  one  time  supposed 
that  a  bastard  in  ventre  matris  was  incapable  of  being  a  devisee, 
and,  therefore,  that  such  a  devise  was  void.  {Co.  Litt.  3  5.)  The 
reason,  assigned  by  Coke,  was  that  he  must  have  gotten  a  name  by 


DEVISE  TO  CORPORATIONS.  475 

reputation  before  he  could  be  the  grantee,  and,  of  course,  the  devi- 
see of  an  estate.  But  the  object  of  a  name  is  to  identify  the  per- 
son, and  this  surely  can  be  done  by  describing  the  mother.  A  will 
in  favor  of  natural  children  is  to  receive  a  like  construction  as  those 
in  favor  of  other  persons.  Although  a  devise  to  children,  without 
other  description,  means  legitimate  children,  yet  if  the  testator  had 
no  legitimate  children,  and  had  those  who  were  illegitimate,  and 
who  were  recognized  as  his,  they  will  be  entitled  to  take.  {Gard- 
ner V.  Heijer,  2  Paige,  11.) 

The  rule  of  law  does  not  acknowledge  a  natural  child  to  have  any 
father  before  its  birth.  A  devise  by  a  man  to  such  child  or  chil- 
dren as  A.  may  happen  to  he  enciente  hy  we,  is  void  for  uncer- 
tainty. But  a  devise  to  a  child  or  children,  of  which  a  particular 
woman  was  enciente,  without  reference  to  any  person  as  its  father, 
would  be  free  from  uncertainty,  and  probably  good.  {East  v.  Wil- 
son, 17  Ves.  531.) 

2.  Corporations.  The  revised  statutes  expressly  provide  that 
no  devise  to  a  corporation  shall  be  valid,  unless  such  corporation  be 
expressly  authorized  by  its  charter  or  by  statute,  to  take  by  devise. 
(2  II.  S.  57,  §  3.  The  Theological  Seminary  of  Auburn  v.  Childs, 
4  Paige,  422.  King  v.  Bundle,  15  Barb.  139.)  The  act  in  rela- 
tion to  religious  incorporations  allows  those  bodies  to  take  and  hold 
real  estate  by  grant  or  debase ;  and  the  only  restriction  is  as  to  the 
amount  of  the  lands  which  they  are  entitled  to  hold.  (3  B.  S.  295, 
§  4,  1st  ed.)  It  is  under  this  general  act  that  most  of  the  religious 
societies  in  this  state  have  been  incorporated.  They  have  an  un- 
limited power  to  receive  property  up  to  a  certain  amount,  but  their 
230wer  of  alienation  of  their  realty  requires  for  its  validity  the  action 
of  the  supreme  court  or  county  court. 

The  corporations  formed  under  the  general  act  of  April  12,  1848, 
for  the  incorporation  of  benevolent,  charitable  societies,  and  mission- 
ary societies,  and  the  several  amendatory  acts,  {L.  of  1848,  p).  447, 
§  6.  Id.  of  1849,  p.  400.  Id.  of  1857,  p.  615,)  although  made 
capable  of  taking,  holding  or  receiring  any  property,  real  or  per- 
sonal, by  virtue  of  any  devise  or  bequest  contained  in  any  last  will 
and  testament  of  any  person  whatsoever,  the  clear  annual  income 
of  which  devise  or  bequest  shall  not  exceed  the  sum  of  ten  thousand 
dollars,  are  expressly  subject  to  the  proviso,  that  no  person  leaving 
a  wife  or  child  or  parent,  shall  devise  or  bequeath  to  such  institu- 


476  RELIGIOUS  CORPORATIONS. 

tion  or  corporation  more  than  one-fourth  of  his  or  her  estate,  after 
the  pajinent  of  his  or  her  debts,  and  such  devise  or  bequest  shall  be 
valid  to  the  extent  of  such  one-fourth;  and  no  such  devise  or  bequest 
shall  be  valid,  in  any  will  which  shall  not  have  been  made  and  ex- 
ecuted at  least  two  months  before  the  death  of  the  testator.  This 
disabling  clause  is  founded  on  the  principle  that  the  claim  of  cred- 
itors, and  of  wife,  child  and  parent  is  stronger  than  that  of  benev- 
alence,  and  should  be  satisfied  before  the  testator  should  dispose  of 
his  property  for  })ious  uses.  The  limitation  too,  that  the  devise  or 
bequest  should  be  made  at  least  two  months  before  the  testator'3 
death,  is  not  without  its  value.  The  motive  doubtless  is  to  insure 
the  making  of  the  devise  or  bequest  with  reasonable  deliberation, 
without  yielding  to  an  importunity  wdiich  some  minds  cannot  resist 
in  the  closing  period  of  life. 

It  is  the  policy  of  the  laws  of  this  state,  that  the  various  religious 
denominations  should  become  incorporated  under  the  general  stat- 
ute for  that  purpose.  The  temporalities  of  the  church,  in  that  case, 
become  vested  in  the  trustees,  the  whole,  or  major  part  of  whom, 
are  laymen,  and  are  not  exclusively  under  ecclesiastical  control. 
The  act  of  1855,  entitled  "  An  act  in  relation  to  conveyances  and 
devises  of  personal  and  real  estate  for  religious  purposes,"  (L.  of 
1855,  ch.  230,  p.  338;  3  R.  S.  621,  btli  ed.)  was  enacted  to  carry 
out  these  views.  It  has  been  adverted  to  in  former  parts  of  this 
treatise.  It  enacts  that  no  grant,  conveyance,  devise  or  lease,  of 
personal  or  real  estate  to,  nor  any  trust  of  such  personal  or  real 
estate,  for  the  benefit  of  any  person  and  his  successor  or  successors 
in  any  ecclesiastical  office,  shall  vest  any  estate  or  interest  in  such 
person,  or  in  his  successor;  and  no  such  grant,  conveyance,  devise 
or  lease,  to  or  for  any  such  person,  by  the  designation  of  any  such 
office,  shall  vest  any  estate  or  interest  in  any  successor  of  such  person. 
And  without  admitting  the  validity  of  any  such  grant,  conveyance, 
devise  or  lease  theretofore  made,  it  enacts  that  no  future  grant, 
conveyance,  devise  or  lease  of  any  real  estate,  consecrated,  dedi- 
cated or  appropriated,  or  intended  to  be  consecrated,  dedicated  or 
appropriated  to  the  purposes  of  religious  worship,  for  the  use  of  any 
congregation  or  society,  shall  vest  any  right,  title  or  interest  in  any 
person  or  persons  to  whom  such  grant,  conveyance,  devise  or  lease 
may  be  made,  unless  the  same  shall  be  made  to  a  corporation  or- 
ganized according  to  the  provisions  of  the  laws  of  this  state,  under 
the  act  entitled  "  An  act  to  provide  for  the  incorporation  of  religious 


DEVISE  TO  ALIENS.  477 

societies,"  and  the  acts  amendatory  thereof,  or  under  the  act  enti- 
tled ''  An  act  for  the  incorporation  of  societies  to  establish  free 
churches,"  passed  April  13,  1854.  {L.  of  1854,  ch.  218.  2  R.  S. 
620,  5th  ed.)  Subsequent  sections  pro\'ide  for  the  escheat  of  such 
real  estate  to  the  people  of  this  state,  in  the  event  that  such  con- 
gregation or  society  shall  not  be  incorporated  as  aforesaid,  and  for 
placing  it  under  the  charge  of  the  commissioners  of  the  land  office 
of  the  state,  who  are  required,  on  being  satisfied  that  the  congre- 
gation or  society  which  had  used,  occupied  or  enjoyed  such  real 
estate  for  the  purposes  of  religious  worship  prior  to  the  death  of 
the  person  or  persons  on  whose  decease  the  title  thereto  vested  in 
this  state,  has  been  duly  incorporated,  to  grant  and  convey  such  real 
estate  to  said  corporation. 

The  occasion  which  led  to  the  foregoing  acts  was  the  refusal  of 
the  Roman  Catholics  to  become  incorporated  under  the  general 
law ;  and  their  practice  of  vesting  the  title  of  their  real  estate  ded- 
icated to  the  purposes  of  religious  worship  in  ecclesiastics.  That 
policy  was  deemed  incompatible  with  our  institutions,  as  it  gave  an 
undue  control  to  those  persons  over  the  laity  of  their  congregations. 

If  a  de\'ise  be  made  to  the  heirs  of  the  testator  of  the  precise 
estate  which  they  would  take  by  descent,  the  devise  is  void,  and  the 
heirs  take  by  descent,  which  is  the  better  title.  This  was  the  rule 
by  the  common  law;  but  it  was  changed  by  the  English  statute  of 
3  and  4  Will.  4th,  ch.  106,  §  3,  which  requires  in  such  a  case  that 
the  heir  shall  take  as  a  devisee,  and  not  by  descent.  (1  Jarman 
on  Wills,  111,  Ferkms'  ed.)  But  the  rule  has  not  been  altered  by 
the  law  of  this  state.    (  Vcm  Kleeck  v.  Dutch  Church,  20  Wend.  469.) 

With  regard  to  the  alienage  of  the  devisee,  it  was  enacted  by  the 
revised  statutes,  that  every  devise  of  any  interest  in  real  property 
to  a  person  who,  at  the  time  of  the  death  of  the  testator,  shall  be  an 
alien,  not  authorized  by  statute  to  hold  real  estate,  shall  be  void. 
The  interest  so  devised  descends  to  the  heirs  of  the  testator;  if  there 
be  no  such  heirs  competent  to  take,  it  passes  under  his  will  to  the 
residuary  devisees  therein  named,  if  any  there  be  competent  to  take 
such  interest.  (2  R.  S.  57,  §  4.)  But  this  statute  was  modified 
m  1845  (L.  of  1845,  ch.  115)  in  favor  of  such  resident  aliens  as 
have  made  and  filed  in  the  office  of  the  secretary  of  state  the  depo- 
sition in  writing  required  by  1  B.  S.  720,  §  15,  that  he  is  a  resident 
of  this  state,  and  intends  always  to  reside  in  the  United  States  and 


478  PROPER  SUBJECT  OF  A  DEVISE. 

to  become  a  citizen  thereof,  as  soon  as  he  can  be  naturalized,  and 
that  he  had  taken  such  incipient  measures  as  the  h'lws  of  the  Uni- 
ted States  require  to  enable  him  to  obtain  naturalization.  An  alien 
having  thus  complied  with  the  law,  may  take  by  grant  or  dtvise, 
and  may  also  grant  and  devise  his  own  real  estate. 

The  court  of  appeals  held  in  Wadsivortliv.  Wadsioorth,  (2  Ker- 
nan,  376,)  that  the  foregoing  provision  of  the  revised  statutes  did 
not  apply  to  an  alien  devisee,  born  after  the  death  of  the  testator. 
Such  a  person  could  take  real  estate  by  devise,  though  he  could  not 
hold  it  against  the  state.  In  that  case  the  testator  devised  lands 
in  trust  for  the  use  of  his  daughter,  who  was  an  American  citizen, 
during  her  life,  Avith  remainder  in  fee  to  her  issue,  and  she  subse- 
quently died  leaving  an  alien  son,  born  after  the  death  of  the  testa- 
tor; the  court  held  that  he  took  under  the  will  as  against  the  heirs 
of  the  testator. 

The  authorities  which  establish  the  common  law  rule,  that  an 
alien  may  take  by  'devise,  and  hold  against  all  but  the  state  until 
office  found,  are,  among  others,  Doe  v.  liobertson,  (11  Wheat.  332;) 
Fairfax  v.  Hunter,  (7  Cranch,  603.) 

The  act  of  1845  enables  the  alien  to  anticipate  the  benefits  of 
our  naturalization  laws,  and  it  has  a  benign  tendency  to  induce 
those  who  intend  to  take  their  lot  in  this  country,  to  become  citi- 
zens as  soon  as  the  laws  will  permit. 


.'  J 


Section  III. 
Of  the  proper  subject  of  a  Devise. 

The  proper  subject  of  a  devise  is  real  estate.  It  matters  not 
whether  it  be  in  possession,  or  remainder,  or  reversion;  it  is  in  ei- 
ther case  the  subject  of  devise.  Every  estate  and  interest  in  real 
property,  descendible  to  heirs,  may  be  so  devised.     (2  li.  S.  57,  §  2.) 

By  the  rules  of  the  common  law,  a  testator  could  not  devise  lands 
subsequently  acquired,  however  strongly  his  intention  to  that  effect 
might'-be  expressed.  (Bunter  v.  Coke,  1  Salk.  237.)  The  English 
statute  (1  Vict.  ch.  26,  §  24,)  has  changed  the  rule  of  law  upon 
this  subject  entirely,  and  provided  that  every  will  shall  be  construed, 
with  reference  to  the  real  and  personal  estate  comprised  in  it,  to 
speak  and  take  effect  as  if  it  had  been  executed  immediately  before 
the  death  of  the  testator;  unless  a  contrary  intention  shall  appear 
in  the  will.     (See  1  Will.  Ex.  Preface,  p.  16.)     The  revised  stat- 


ESTATES  HELD  IN  TRUST.  479 

utes  have  not  gone  so  far  as  to  put  wills  of  real  estate  upon  the 
same  footing  as  wills  of  personal  property,  in  this  respect;  though 
they  have  unquestionably  abrogated  the  technical  rule  that  the  tes- 
tator was  incapable  of  devising  an  interest  in  land,  or  real  estate, 
acquired  subsequent  to  the  date  of  the  will  by  which  he  attempted 
'  to  dispose  of  the  same.     {Pond  v.  Bergh,  10  Paige,  149.     Parker 
V.  Bogardus,  1  Seld.  309.)     The  5th  section  of  the  title  relative 
to  wills  of  real  and  personal  property,  (2  R.  S.  57,)  declares  that 
every  vdW  that  shall  be  made  by  a  testator  in  express  terms,  of  all 
his  real  estate,  or  in  any  other  terms  denoting  his  intent  to  devise 
all  his  real  property,  shall  be  construed  to  pass  all  the  real  estate 
which  he  was  entitled  to  devise  at  the  time  of  his  death.     This  stat- 
utory provision  proceeds  upon  the  ground  that  in  a  general  devise 
of  all  his  real  estate,  the  testator  has  reference  to  the  real  estate  as 
it  shall  exist  at  the  time  of  his  death;  and  that  such  a  construction 
of  the  testamentary  disposition  of  his  property  will  be  but  carryino- 
his  intention  into  effect.     Upon  the  same  principle,  said  the  chan- 
cellor in  Pond  v.  Bergh,  (supra,)  if  he  devises  all  the  real  estate 
of  a  particular  descrii)tion  of  which  he  shall  die  possessed,  or  which 
shall  belong  to  him  in  aparticniar  toivn  or  county,  at  the  time  of 
his  death,  although  the  devise  would  not  be  within  the  words  of 
this  section,  it  not  being  a  general  devise  of  all  his  real  estate,  it 
would  clearly  be  within  the  spirit  and  intent  of  the  act.     But  where 
he  devises  all  his  real  estate  at  a  i)articular  place,  or  within  a  par- 
ticular district  of  country,  there  is  good  reason  to  suppose  he  means 
to  speak  in  reference  to  the  lands  he  has  acquired  there;  and  that 
if  he  intended  to  give  to  the  devisee  all  the  lands  or  real  estate 
which  he  should  afterwards  purchase  at  that  place,  or  within  the 
specified  district  of  country,  there  would  have  been  something  in 
his  will  indicating  such  an  intention. 

The  provisions  of  the  statute  do  not  apply  to  wUs  executed  prior 
to  1830,  when  the  revision  took  effect.     In  this  respect,  the  effect 
of  wills  executed  prior  to  that  time,  is  not  touched  by  the  statute,  • 
but  remains  as  at  common  law.     {Parker  v.  Bogardus,  1  SelcU  309. 
Ellison  V.  Miller,  11  Barb.  332.) 

In  order  to  devise  real  estate,  a  man  must  be  the  beneficial  owner. 
We  have  seen  elsewhere  that  he  cannot  alienate,  and  of  course  can- 
not devise  real  estate  held  by  him  in  trust.  In  such  a  case,  on  the 
death  of  an  only  trustee,  the  trust  vests  in  the  supreme  court,  which 
is  authorized  to  appoint  a  new  trustee;  and  thus  the  trust  is  pre- 


480  ESTATES  HELD  IN  JOINT  TENANCY. 

served  until  the  purpose  for  whicli  it  was  created  is  Batisfied. 
(1  It.  S.  730,  §§  67,  G8,  71.  In  the  uiaftcr  of  Van  Schoonhoven, 
5  Paige,  559.     Haivley  v.  Boss,  7  id.  103.) 

Chattels  real,  or  terms  for  years,  cannot  be  devised,  though,  like 
other  personal  property,  they  can  be  bequeathed,  and  thus  disposed 
of  by  will.  If  not  so  disposed  of,  they  vest  in  the  executor  or  ad- 
ministrator, as  assets,  and  do  not  descend  to  the  heirs.  They  are 
to  be  inserted  in  the  inventory  as  part  of  the  personal  property  of 
the  deceased.     (2  R.  S.  82.) 

A  party  who  has  entered  into  a  valid  executory  contract  to  pur- 
chase real  estate,  has  such  an  interest  even  before  the  legal  title  is 
conveyed  to  him,  that  he  may  devise  the  same.  This  is  an  equita- 
ble interest  which  a  court  of  equity  will  protect. 

From  the  time  when  the  agreement  was  executed,  the  vendor  is 
considered  to  be  seised  only  in  trust  for  the  purchaser,  who  in  equity 
is  treated  as  the  real  owner.  The  latter,  therefore,  can  devise 
the  land,  but  the  former  cannot.  The  language  of  our  statute  is 
broad  enough  to  include  this,  as  a  devisable  interest.  Equity  goes 
upon  the  maxim  that  what  is  agreed  to  be  done  is  treated  as  actu- 
ally performed. 

A  possibility  coupled  with  an  interest  is  devisable,  when  the  per- 
son in  whom  the  interest  is  to  vest  in  the  event  contemplated,  is 
known  or  is  capable  of  being  ascertained.  As  to  such  interest,  it  is 
held  that  devisable  and  descendible  are  convertible  terms;  and  no 
particular  form  of  words  is  necessary  in  a  will  to  embrace  contin- 
gent interests  in  real  estate.     {Pond  v.  Bergh,  supra.) 

It  is  no  objection  to  the  right  of  devising  property  that  it  is  held 
by  a  stranger  adversely;  and  it  is  strongly  intimated  that  under  our 
statute  of  wills,  a  devise  may  be  good  notwithstanding  an  actual 
disseisin.  The  statute  against  champerty  and  maintenance  does 
not  apply  to  devises,  nor  to  judicial  sales  or  assignments  under  our 
insolvent  laws.     (Varickv.  Jackson.  2  Wend.  166.) 

We  have  few  cases  of  joint  tenancy  in  this  state,  as  the  laAv  fa- 
vors a  tenancy  in  common.  But  where  an  estate  is  held  by  two  or 
more  in  joint  tenancy,  none  but  the  last  survivor  can  devise  it.  A 
different  rule  would  defeat  the  right  of  survivership,  which  is  an , 
inseparable  incident  of  the  estate.  The  reason  assigned  by  Coke 
is,  that  the  survivor  has  a  priority  of  time  in  the  instant,  and  there- 
fore is  preferred  to  the  devisee  of  the  deceased.  (Litt.  §  287.  Co. 
Litt.  185  6.) 


FORMALITIES  TO  A  DEVISE.  481 

A  mortgage  is  considered  as  a  mere  security  for  the  payment  of 
the  debt.  The  debt  is  the  principal  and  the  mortgage  the  incident. 
Formerly,  on  the  death  of  the  mortgagor,  the  personal  representa- 
tives, as  between  them  and  the  heirs,  were  bound  to  relieve  the  in- 
heritance from  the  incumbrance.  This  was  changed  by  the  revised 
statutes;  and  now,  whenever  real  estate,  subject  to  a  mortgage 
executed  by  any  ancestor  or  testator,  shall  descend  to  an  heir,  or 
pass  to  a  devisee,  such  heir  or  devisee  is  required  to  satisfy  and  dis- 
charge the  mortgage  out  of  his  own  property,  without  resorting  to 
the  executor  or  administrator  of  the  ancestor,  unless  there  be  an 
express  direction  in  the  will  of  the  testator,  that  such  mortgage  be 
otherwise  paid.  (1  R.  S.  749,  §  4.  Mollan  v.  Griffiths,  3  Paige, 
404.  House  v.  House,  10  id.  162.  Johnson  v.  Corbett,  11  id.  269. 
Ta7jlor  v.  Wendel,  4  Brad/.  324.) 

Until  foreclosure,  the  legal  estate  is  in  the  mortgagor,  and  he  may 
devise  the  premises  in  the  same  manner  as  if  they  were  unincum- 
bered. But  the  mortgagee  has  no  estate  in  the  land  which  will 
pass  to  his  heirs,  or  can  be  devised  as  real  property,  even  after 
breach  of  the  condition,  until  foreclosure. 

A  rent  charge  is  devisable,  and  may  be  severed  from  the  inher- 
itance. By  the  devise  of  the  reversion  the  rent  will  pass,  unless 
some  provision  be  made  to  the  contrary.  But  by  a  devise  of  the 
rent  alone,  the  reversion  will  not  pass.  (Demarest  v.  Willard,  8 
Coiven,  206.) 

Section  IV. 
0/  the  Formalities  necessary  to  a  Valid  Devise. 

There  was  formerly  a  marked  distinction  between  a  will  devising 
real  estate,  and  a  will  which  merely  disposed  of  personal  property. 
This  distinction  applied  not  only  to  the  solemnities  attending  the  ex- 
ecution of  the  instrument,  but  also  to  the  capacity  of  the  testator, 
and  the  necessity  and  mode  of  probate.  These  distinctions  have, 
in  a  great  measure,  been  abrogated  in  this  state.  The  only  diifer- 
ence  between  the  two  cases  now  is,  that  it  is  essential  to  the  mak- 
ing of  a  will  of  real  estate  that  the  testator  should  be  of  the  full 
age  of  twenty-one  years,  whereas  a  male  infant  of  the  age  of  eigh- 
teen years  or  upwards,  and  an  unmarried  female  infant  of  the  age 
of  sixteen  years  or  upwards,  if  laboring  under  no  other  disal)ility, 

Will.— 31 


482  MODE  OF  EXECUTION. 

may,  in  either  case,  bequeath  their  personal  estate  by  will  in  writ- 
ing.    (2  It.  S.  57,  GO.) 

The  probate  of  wills  and  the  proving  and  recording  wills  of  real 
estate  belong  to  the  courts  of  the  surrogates  of  the  several  counties, 
and  are  sufficiently  treated  in  books  devoted  to  that  subject. 

It  is  not  necessary  to  the  validity  of  a  devise,  that  the  \viU  should 
have  been  admitted  to  probate  as  a  will  of  personal  property;  or  that 
it  should  have  been  recorded  as  a  will  of  real  estate,  under  the  pro- 
visions of  the  revised  statutes.  We  have  seen  elsewhere,  that  it  is 
desirable  that  it  should  be  proved  in  the  proper  court  as  a  matter 
of  prudent  precaution  and  to  preserve  the  evidence  of  its  authenti- 
city, but  that  the  devisee  does  not  derive  his  title  from  the  probate, 
as  the  party  claiming  a  personal  bequest  does  to  a  certain  extent. 

The  devisee  may,  without  the  proof  of  the  will  before  the  surro- 
gate, enter  upon  the  land  devised  to  him,  or  maintain  an  action  at 
law  for  its  recovery,  if  it  be  in  the  possession  of  a  stranger,  at  the 
death  of  the  testator,  or  at  any  other  time.  It  hence  becomes  ne- 
cessary to  know  the  requisite  proof  to  sustain  a  title  under  a  will; 
and  that  in  a  great  measure  depends  on  the  statutory  requirements 
as  to  the  execution  of  it. 

The  general  provisions  with  respect  to  the  execution  of  a  will  of 
real  estate  are  the  same  as  those  which  are  required  in  a  will  of 
personal  property,  and  are  prescribed  by  the  statute.  (2  B.  S.  63, 
§  40.)  It  is  required  that  a  last  will  and  testament  of  real  or  per- 
sonal property,  or  both,  shall  be  executed  and  attested  in  the  fol- 
lowing manner : 

1.  It  shall  be  subscribed  by  the  testator  at  the  end  of  the  will. 

2.  Such  subscription  shall  be  made  by  the  testator,  in  the  pres- 
ence of  each  of  the  attesting  witnesses,  or  shall  be  acknowledged  by 
him  to  have  been  so  made,  to  each  of  the  attesting  witnesses. 

3.  The  testator,  at  the  time  of  making  such  subscription,  or  at 
the  time  of  acknowledging  the  same,  shall  declare  the  instrument 
so  subscribed  to  be  his  last  wiU  and  testament. 

4.  There  shall  be  at  least  two  attesting  witnesses,  each  of  whom 
shall  sign  his  name  as  a  mtness,  at  the  end  of  the  will,  at  the 
request  of  the  testator.     (2  B.  S.  63,  §  40;  68,  §  71,  as  to  codicil.) 

The  four  ingredients  above  specified  must  enter  into,  and  together 
constitute  one  entire  complex  substance  essential  to  a  complete  ex- 
ecution. {Per  Nelson,  J.  in  Bemsen  v.  Brinkerhpof,  26  Wend.  331.) 


ON  WlIxVT  TO  BE  WRITTEN.  483 

Before  -noticing  more  at  large  the  above  four  requisites,  it  is 
proper  to  say  that  the  will  must  be  in  writing.  The  statute  has 
not  declared  on  what  substance  it  should  be  written,-  nor  whether 
with  pen  and  ink,  or  with  a  lead  pencil.  It  is  invariably,  in  this 
state,  wTitten  on  paper  or  parchment,  and  with  pen  and  ink;  and 
that  is  recommended  as  the  most  advisable  course.  In  England, 
wills  of  personal  property  written  with  a  pencil  have  been  admitted 
to  probate.  {Rymer  v.  Clarkson,  1  FMll.  35.  Dickerson  v.  Dich- 
erson,  2  id.  173.)  The  question  has  not  arisen  in  this  state  since 
the  revised  statutes.  We  have  seen  that  it  is  essential  to  the  valid- 
ity of  a  deed  that  it  should,  be  \mtten  on  paper  or  parchment. 
This  was  founded  on  technical  reasons  applicable  to  common  law 
proceedings,  and  does  not  necessarily  relate  to  wills,  the  proof  of 
■which  belonged  to  a  difi'erent  forum.  But  in  this  state,  wills  of 
real  and  personal  property  are  both  placed  on  the  same  footing,  and 
are  required  to  be  in  writing,  and  subscribed  by  the  testator  at  the 
end  thereof,  and  to  be  attested  by  at  least  two  witnesses,  who  are 
to  siern  their  names  at  the  end  of  the  will  as  such  witnesses.  It  was 
obviously  the  design  of  the  legislature,  at  the  revision,  to  assimilate 
the  different  modes  of  conveyance  to  each  other.  There  is  a  strong 
implication,  from  the  language  of  the  statute,  that  the  will  should 
be  written  with  pen  and  ink.  The  decision  of  the  court  of  errors  in 
Davis  V.  Shields,  (26  Wend.  341,)  which  arose  under  similar  lan- 
guage in  the  statute  of  frauds,  to  that  in  the  act  concerning  wills, 
affords  a  strono:  argument  in  favor  of  the  doctrine  that  a  testa- 
mentary  instrument  must  be  written  on  j)ai)er  or  parchment,  with 
pen  and  ink.  Professor  Greenleaf,  the  learned  editor  of  Cruise's 
Digest,  seems  to  think  that  it  is  not  indispensable  to  the  validity  of 
a  will,  that  it  should  be  written  on  paper  or  parchment,  or  with 
pen  and  ink;  and  that  the  substance  on  which  it  is  written  or  the 
mode  of  writing  is  not  conclusive  as  to  the  intention.  (3  Cruise's 
Dig.  45,  7iote  2,  Greenl.  ed.  tit.  3S,  Devise,  ch.  5,  §  4.)  The  learned 
professoy  does  not  speak  with  reference  to  the  laws  of  this  state, 
but  the  common  law.     (See  also  Green  v.  Skipworth,  1  Phill.  53.) 

It  is  not  material  in  w^hat  language  the  will  is  written,  nor  in 
what  handwriting,  or  character,  so  that  it  be  fair  and  legible,  and 
the  meaning  sufficiently  apparent.  Nor  is  it  important  whether 
numbers,  or  sums  of  money,  be  expressed  in  words  at  length,  or  in 
figures;  nor  whether  abbreviations  be  used,  provided  they  are  such 
as  are  usual  and  well  understood.     Nor  is  it  necessary,  absolutely, 


484  FIRST  REQUISITE— SUBSCRIBING. 

that  the  rules  with  respect  to  capitalizing  and  punctuation  should 
be  strictly  observed.  These  are  matters  which  a  skillful  draftsman 
will  never  disregard,  as  a  correct  observance  of  good  usage  in  this 
respect  tends  to  avoid  ambiguity  and  uncertainty;  and  thus  to  re- 
lieve the  parties  interested  from  distressing  and  expensive  litigation. 

Thus  much  has  been  deemed  necessary  to  say  on  the  sulyect  of 
the  writing  of  a  will,  and  the  materials  with  which  it  should  be 
done.  It  is  now  proposed  to  notice  the  four  requisites  particularly 
specified  in  the  statute.  Experience  has  shown  that  it  is  impossi- 
ble to  announce  the  directions  of  the  lawgiver  in  a  few  brief  sentences, 
so  accurately  expressed,  as  to  avoid  all  room  for  construction.  The 
imperfection  of  human  language  frequently  calls  for  circumlocution 
to  free  it  from  doubt  and  uncertainty. 

Thejirst  re(iuisite,  that  of  suhscrihing  hy  the  testator  at  the  end 
of  the  will,  was  a  change  from  the  former  law,  which  required  only 
the  signing  of  the  will  by  the  testator.  (1  i?.  L.  364.)  Under 
that  law  it  had  been  held  that  if  the  testator  wrote  his  name  in  any 
part  of  the  vsdll,  with  the  intent  to  give  it  validity,  it  was  a  suffi- 
cient signing  within  the  meaning  of  the  statute;  and  that  making 
his  mark  with  the  like  intent,  was  a  valid  signing.  {Jachson  v. 
Van  Dusen,  5  John.  144.  Bakei'  v.  Dunning,  8  Adol.  &  EU.  94. 
Tonnele  v.  Hall,  4  Comst.  145,  ^:>er  Jeivett,  J.  1  J  arm.  on  Wills, 
Perkins'  ed.  114,  a7id  notes.) 

The  mischief  under  the  old  law  was,  as  stated  by  Jewett,  J., 
supra,  that  inasmuch  as  the  testator  was  not  required  to  sign  the 
will  at  the  end  of  it,  it  could  n(jt  always  appear  clearly  that  he  had 
perfected  the  instrument.  To  remedy  this,  our  statute  requires  the 
will  to  be  subscribed  by  the  testator  at  the  end  of  the  will.  The 
late  English  statute,  Victoria  1,  chap.  26,  passed  in  1837,  has  adopt- 
ed a  similar  change,  by  requiring  the  will  to  be  "  signed  at  the  foot 
or  end  of  the  will."  The  word  "  subscribe"  imports  a  signing  be- 
neath the  matter  written,  and  this  is  made  more  plain  by  adding, 
"  at  the  end  of  the  will."  A  will  commencing  with  the  name  of 
the  testator,  as  "  I  A.  B.  make  this  my  last  will  and  testament," 
which  was  held  to  be  a  sufficient  signing  within  the  old  law,  would 
not  be  a  subscribing  of  his  name  at  the  end  of  the  will,  within  the 
meaning  of  the  present  statute. 

The  statute  does  not  require  that  a  testator  who  cannot  write 
should  make  his  mark.  It  how^ever  evidently  implies  that  a  person 
who  cannot  write  his  own  name,  whatever  be  the  cause  of  the  omis- 


SECOND.    SUBSCRirTIOX  BY  TESTATOR.  485 

sion,  may  make  a  will :  that  in  such  a  case  some  other  person  may, 
by  the  direction  of  the  testator,  sign  the  testator's  name  to  the  will. 
But  in  this  case,  the  person  who  thus  signs  the  testator's  name  to 
the  will,  is  required  "  to  ^vrite"  his  own  name  "  as  a  witness  to  the 
loilL"  (2  R.  S.  64,  §  41.)  The  former  practice  of  making  his 
mark  should  be  followed  when  the  testator  fails  to  subscribe  his 
name  personally.  For  though  such  mark  cannot  perhaps  be  proved 
by  persons  vvlio  had  seen  the  testator  make  his  mark  to  other  wi'it- 
ings,  the  making  of  the  mark  is  calculated  to  impress  itself  upon 
the  mind  of  the  witnesses,  and  to  call  the  attention  of  the  testator 
more  strongly  to  the  act  of  execution  of  the  instrument.  (Keeney 
V.  Whitmarsh,  16  Barh.  141.  Butler  v.  Benson,  1  id.  527.  Chaffee 
V.  The  Baptist  Miss.  Con.  10  Paige,  91.  Addy  v.  Grix,  8  Vescy, 
504.     Jackson  v.  Van  JDusen,  supra.) 

The  second  requirement  is  that  the  subscription  shall  he  made  hy 
the  testator  in  the  presence  of  each  of  the  attesting  witnesses,  or 
shall  be  achioidedged  by  him  to  have  been  so  made  to  each  of  the 
attesting  witnesses. 

This  acknowledgment  by  the  testator  is  an  independent  requisite, 
and  is  not  to  be  confounded  with  the  declaration  required  by  the 
next  subdivision,  that  the  instrument  so  subscribed  is  his  last  will 
and  testament.  {Lewis  v.  Leivis,  1  Kern.  220.)  The  acknowledg- 
ment of  the  testator  that  the  instrument  is  his  last  will  and  testa- 
ment, and  requesting  the  witnesses  to  attest  it  as  such,  is  not  a 
substitute  for  the  acknowledgment  of  his  subscription.  All  the 
statutory  requirements  must  be  fully  complied  with.  (Bemsen  v. 
Brinkerhoff,  26  Wend.  331.  Chaffee  v.  TJie  Bapjtist  Miss.  Con. 
10  Paige,  85.) 

The  execution  of  the  will  by  the  testator,  and  the  attestation  by 
the  subscribing  witnesses,  are  all  concurrent  acts,  and  to  be  done 
at  the  same  time.  The  particular  order  in  which  these  require- 
ments are  fulfilled,  is  not  important.  There  is  necessarily  some  in- 
terval between  the  different  acts,  though  all,  in  contemplation  of 
law,  are  done  at  the  same  time.  (Doe  v.  Boe,  2  Barb.  205  ^e- 
guine  v.  Seguine,  id.  394-5,  per  Edmonds,  J.  Keeney  v.  Whit- 
marsh, 16  id.  145.) 

It  was  intimated  by  the  learned  judge  iti  Butler  v.  Benson,  (su- 
pra,) that  the  acknowledgment  may  be  made  to  the  witnesses  sep- 
arately, or  that  he  may  subscribe  and  publish  in  the  presence  of 
one,  and  acknowledge  and  publish  before  another.     This  was  not  a 


486  THIRD.    PUBLICATION  OP  WILL. 

necessarj--  point  in  that  case,  and,  though  entitled  to  much  respect, 
cannot  be  supported. 

The  usual  mode  of  making  the  acknowledgment  is  by  a  declara- 
tion to  the  witnesses  that  the  subscription  is  his.  It  has  been  licld, 
in  England,  that  when  the  testator  produces  the  will,  with  his  sig- 
nature visibly  apparent  on  the  face  of  it,  to  the  witnesses,  and  re- 
quests them  to  subscribe  it,  this  is  a  suflicient  acknowledgment  of 
his  signature.  {Gage  v.  Gage,  3  Curtets,  451.)  The  cases  in  this 
state  are  as  full  and  explicit.  (Nipper  v.  Groesheck,  22  Barb. 
670.)  It  is  well  settled  in  the  foregoing  cases  that  no  particular 
form  of  words  is  necessary  to  be  used  by  the  testator,  either  under 
the  second  or  third  requirement  of  the  statute.  The  only  import- 
ant thing  is  that  the  testator  and  the  witnesses  alike  understand 
that  the  testator' s  object  is  to  give  effect  to  the  instrument  as 
his  "vvill. 

The  third  requirement  is,  that  tJie  testator  at  the  time  of  maTcing 
such  suhscrip>tion,  or  at  the  time  of  acknoivledging  the  same,  shall 
declare  the  instrument  so  subscribed  to  be  his  last  tvill  and  tes- 
tament. 

The  testamentary  declaration  required  by  this  branch  of  the  stat- 
ute is  deemed  of  great  importance ;  and  the  courts  have  held  the 
parties  to  a  strict  compliance  with  it.  If  it  is  strictly  followed  it 
will  show,  beyond  controversy,  that  the  testator  comprehended  the 
act  which  he  was  doing.  In  Letois  v.  Leivis,  (1  Kern.  220,)  the 
testator  presented  the  instrument  to  the  witnesses  and  said,  "  I  de- 
clare the  within  to  be  my  free  will  and  deed."  This  was  held  by 
the  court  of  appeals  not  to  be  a  sufficient  declaration  that  the  in- 
strument was  his  last  will  and  testament.  In  this  case  it  was  left 
in  doubt,  by  the  mode  of  expression,  whether  the  testator  supposed 
he  was  executing  a  will  or  a  deed.  The  statute  does  not  use  the 
-word puhlicaf  ion.  It  is  doubtless  included  in  the  word  "  executed," 
in  connection  with  the  testamentary  declaration.  {Brinkerhoff  x. 
Bemsen,  8  Paige,  488.  S.  C.  in  error,  26  Wend.  325.)  The  dec- 
laration required  by  the  statute  must  be  made  in  the  presence  of 
two  witnesses  at  the  least.  It  is  not  enough  that  the  testator 
makes  the  requisite  declaration  in  presence  of  one  witness,  and 
afterwards  signs  the  instrument  in  the  presence  of  two  who  sub- 
scribe it  as  witnesses  at  his  request.  (Seymour  v.  Van  Wyck,  2 
Seld.  120.) 

When  the  drafting  and  execution  of  a  will  devising  real  estate 


THIRD :  ATTESTATION  CLAUSE.         ^  437 

are  superintended  by  a  professional  adviser,  he  will  doubtless  follow 
the  order  prescribed  in  the  statute,  as  the  best  mode  of  complying 
with  its  directions  and  S])irit.  But  wills  are  not  always,  and  pur- 
haps  not  often,  prepared  and  executed  by  the  aid  of  wise  and  skill- 
ful counsel.  The  statute  is  not  to  be  construed  strictly,  except  as 
to  the  evils  it  was  intended  to  prevent;  in  all  other  respects  it  is 
to  be  construed  liberally,  and  when  the  essential  requisites  are  sat- 
isfactorily proved,  the  objects  of  the  law  are  answered.  The  statute 
does  not  render  a  will  invalid  because  the  literal  order  in  the  per- 
formance of  the  statutory  requirements  has  not  been  followed. 
When  it  is  required  that  the  testamentary  declaration  shall  be  made 
at  the  time  of  the  subscription,  time  is  used  in  the  sense  of  occasion^ 
season,  and  not  in  its  extreme  strictness,  as  indicative  of  a  precise 
instant.  (liieben  v.  Hicks,  3  Brad/.  353.)  It  is  not  required  that 
while  the  testator  is  subscribing  his  name,  he  should  make  the 
declaration.  It  may  be  done  immediately  preceding,  or  immedi- 
ately after  the  subscription.  It  is  enough  if  the  various  acts  be 
so  connected  as  to  leave  no  doubt  that  they  are  all  parts  of  the 
res  gestae. 

Nor  is  the  form  of  much  importance,  provided  the  ideas  be  prop- 
erly expressed.  It  is  often  done  by  means  of  questions  put  by  the 
counsel  attending  the  execution  of  the  will,  and  the  affirmative  re- 
sponse of  the  testator.  {Tunlson  v.  Tunison,  4  Bradf.  138.)  It 
is^  not  to  be^  expected  that  even  intelhgent  lajTnen  can  perform, 
without  advice  and  assistance,  the  ceremonies  requisite  to  a  valid 
execution  of  a  will;  much  less  can  this  be  required  from  the  un- 
learned, who  are  often  in  the  last  stages  of  disease  when  the  act  is 
to  be  performed. 

It  is  advisable  that  the  attestation  clause  of  the  will  should  be 
so  drawn  up  as  to  indicate  a  comi)liance  with  the  statute  require- 
ments. This  should  be  read  aloud  to  the  witnesses  in  the  presence 
of  the  testator.  It  will  serve  to  fix  their  attention  to  the  facts  which 
have  occurred,  and  impress  them  upon  their  memory.  {Whitheck 
V.  Patterson,  10  Barb.  608.)  An  attestation  clause  is  not  abso- 
lutely required  by  the  statute,  nor  is  the  reading  of  it  made  indis- 
pensable.    It  is  merely  recommended  as  a  matter  of  caution. 

In  the  EngHsh  books,  it  is  sometimes  said  that  a  devise  must  be 
published,  (Cruise's  Dig.  tit.  38,  ch.  5,  Devise,  §  50,)  and  that  a 
delivery  of  a  will  as  a  deed  is  a  sufficient  publication.  An  act  of 
publication  is,  however,  not  essential,  unless  when  it  is.  required  by 


488  FOURTH:  ATTESTING  WITNESSES. 

statute,  or  by  the  power  under  which  it  is  made.  {Moodie  v.  Reid, 
7  Taunt.  355.)  We  have  seen  that  a2>?/6Zica^/on,hy  that  name,  is 
not  required  under  our  statute.  Tlie  execution  of  the  instrument,  in 
the  manner  prescribed  by  law,  accompanied  by  the  testamentary  dec- 
laration prescribed,  and  the  attestation  of  the  witnesses,  are  in  truth 
a  publication,  in  the  sense  in  which  that  term  is  usually  understood. 
No  publication  distinct  from  the  foregoing  was  ever  required  under 
the  statute  of  frauds.     {Doe  v.  Purdctt,  4  Adol.  &,  EUis,  14.) 

The  fourth  and  last  requirement  is,  that  there  shall  he  at  least 
two  attesting  witnesses,  each  of  lohom  shall  sign  his  name  as  a 
witness,  at  the  end  of  the  will,  at  the  request  of  the  testator.  The 
former  statute  of  wills,  (1  R.  L.  364,)  like  the  English  statute  of 
Henry  8th,  from  which  it  was  principally  taken,  required  that  a 
will  devising  real  estate  should  be  in  writing,  and  signed  by  the 
party  making  it,  or  by  some  other  person  in  his  presence,  and  by 
his  express  direction;  and  be  attested  and  subscribed  in  the  pres- 
ence of  the  testator,  by  three  or  more  credible  witnesses.  Witnesses 
were  not  required  to  a  will  of  personalty. 

The  re^^sed  statutes  have  put  both  kinds  of  wills  upon  the  same 
footing;  and  instead  of  three  witnesses,  have  required  two  only, 
and  have  pointed  out  the  manner  in  which  they  shall  attest  the  will. 

As  a  matter  of  precaution  it  is  required  that  the  witnesses  shall 
write  opposite  to  their  names  their  respective  places  of  residence; 
.and  the  person  who  shall  sign  the  testator's  name  to  any  will  by  his 
direction,  is  required  to  Avrite  his  own  name  as  a  witness  to  the  will, 
A  failure  to  comply  with  either  of  these  provisions  subjects  the  de- 
faulting party  to  a  penalty  of  fifty  dollars,  but  does  not  invalidate 
the  instrument  or  the  attestation. 

While  the  statute  has  taken  for  granted  that  there  may  be  cases 
where  a  testator  cannot  subscribe  his  own  name  to  the  will,  and  has 
provided  for  that  contingency,  it  has  made  no  such  presumption  in 
regard  to  the  attesting  witnesses.  It  assumes  that  no  one  would 
be  called  to  attest  the  execution  of  a  will  who  could  not  write  his 
own  name.  A  prudent  counsellor  will  no  doubt  advise  the  testator 
to  request  no  other  persons  to  become  attesting  witnesses  than  such 
as  are  capable  of  authenticating  the  fact  by  their  own  signature. 
Nevertheless,  it  is  by  the  request  of  the  testator  that  they  become 
attesting  witnesses ;  and  it  may  happen  that  the  only  persons  acces- 
sible for  that  purpose,  or  desired  by  the  testator,  are  too  illiterate 
or  infirm  to  write,  otherwise  than  by  their  mark.     Shall  their  at- 


PRESENCE  OF  TESTATOR.  439 

testation  be  invalid  for  that  cause  ?     We  have  but  few  decisions  on 
this  point,  because  probably  but  few  cases  of  that  kind  ever  occur. 
But  the  weight  of  authority,  as  well  as  the  reason  of  the  thing  and 
the  analogy  of  this  to  other  cases,  lead  us  to  believe  that  the  attest- 
ation of  a  witness  by  making  his  mark  to  the  signature  of  his  name, 
put  to  the  will  at  his  request  by  another  person,  is  a  valid  attesta- 
,    tion.     (Jackso7i  v.  Van  Dusen,  5  John.  144.     Campbell  v.  Logan, 
2  Brad.  90.     Harrison  v.  Elvin,  3  Qu.  B.  Bep.  117.)     The  only 
exception  to  this  would  seem  to  be  the  case  of  a  witness  who  had 
signed  the  testator's  name  to  the  will  at  his  request,  who  is  required 
in  such  case  "  to  write  his  own  name"  as  a  witness  to  the  will.     If 
he  was  able  to  sign  the  testator's  name,  he  would  certainly  be  able 
to  2^r?Ye  his  own ;  and  there  is  no  hardship  in  requiring  that  he 
should  do  so  in  such  a  case.     There  is  in  the  positive  requirement  in 
this  case,  an  implication  that  in  other  cases  the  writing  of  the  name 
of  the  witness  by  his  own  hand  is  not  an  indispensable  requirement. 
There  are  two  circumstances  prescribed  in  the  statute  with  respect 
to  the  attestation  which  should  be  noticed.     The  witnesses  are  re- 
quired to  sign  their  names  at  the  end  of  the  will,  and  at  the  request 
of  the  testator. 

The  first  of  these,  with  reference  to  the  place  where  the  witnesses 
should  sign  their  names,  will  not  in  general  lead  to  any  controversy. 
If  the  usual  attestation  certificate  be  subjoined  to  the  will  by  the 
person  who  drew  it,  and  the  witnesses  sign  their  names  thereto,  it 
will  be  at  the  end  of  the  will;  as  is  contemplated  by  the  act.  'if 
there  be  no  such  certificate,  and  we  have  seen  that  it  is  not  indis- 
pensable, the  signature  of  the  witnesses  should  be  at  the  end  of  the 
will,  as  low  if  not  lower  than  that  of  the  testator;  thus  showing 
that  their  signatures  were  subsequent  to  that  of  the  testator. 

The  former  statute  required  that  the  signing  by  the  attesting 
witnesses  should  be  in  the  presence  of  the  testator.  This  is  omit- 
ted in  the  present  statute,  and  is  no  longer  necessary.  {Lyon  v. 
Smith,  11  Barh.  124,  disapproving  the  doctrine  of  Hand,  J  in 
Butler  V.  Benson,  1  Barh.  530.  Buddon  v.  McDonald,  1  Bradf 
352.  4  Kent,  515.)  The  late  English  statute,  1  Vic.  ch.  26,  §  9,  re- 
quires !he  attesting  witnesses  to  subscribe  the  will  in  the  presence 
of  the  testator;  but  neither  that  statute  or  ours  requires  them  to 
subscribe  in  the  presence  of  each  other.  (1  Will.  Ex.  75,  Mh  Am.  ed  ) 
It  is  no  donbt  necessary  that  the  subscribing  witnesses  should 
write  their  names  at  the  time  it  was  executed;  and  it  is  the  more 


490  REQUEST  OF  TESTATOR. 

prudent  course  to  Jo  it  when  both  are  together,  and  in  the  presence 
of  the  testator.  At  connnou  law,  a  person  who  was  present  and 
saw  an  instrument  executed,  cannot  make  himself  a  good  suhscri])- 
ino-  witness,  by  adding  his  name  thereto  at  a  subsequent  day,  with- 
out the  request  of  the  parties.  {IloIIcnhecJe  v.  Fleming,  C  Hill, 
305.  He7iry  v.  Bishop,  2  Wend.  575.  Lyon  v.  Smith,  sivpra.) 
The  cases  under  the  former  law  of  real  and  constructive  presence  . 
are  no  longer  of  any  importance. 

The  other  circumstance,  namely,  that  the  witnesses  must  attest 
at  the  request  of  the  testator,  has  led  to  some  discussion  in  the  courts. 
It  is  not  material  at  what  time  the  testator  requests  the  witnesses 
to  attest  his  subscription  to  the  will,  whether  immediately  before 
or  immediately  after  such  subscription,  provided  it  be  on  the  same 
occasion,  and  a  part  of  the  same  transaction.  {Seguine  v.  Seguine, 
2  Barb.  386.)  Nor  is  it  important  in  what  language  the  request 
is  made;  nor  whether  it  is  proved  by  direct  evidence,  or  is  sought 
to  be  inferred  from  circumstances.  {Rutherford  v.  Rutherford,  2 
Denio,  33.) 

It  often  happens  that  the  witnesses  are  not  called  upon  to  testify 
as  to  the  execution  of  the  ^vill  until  long  afterwards.     It  is  not  sur- 
prising that  they  should,  if  they  are  not  of  the  legal  profession,  fail 
to  recollect  the  occurrence  or  the  language  of  the  testator  at  the 
time.     If  the  proper  attestation  clause  be  added  to  the  will,  certi- 
fying that  the  testator  subscribed  his  name  to  'the  will  in  the  pres- 
ence of  the  witnesses,  and  at  the  same  time  declared  it  to  be  his 
last  will  and  testament,  and  requested  the  witnesses  to  sign  their 
names  thereto  as  witnesses  to  the  execution  thereof,  and  certifying 
further  that  the  said  witnesses  did  accordingly,  in  the  presence  of  the 
testator  and  of  each  other  so  subscribe,  and  specifying  the  dtiy  when 
it  was  done;  and  be  subscribed  by  the  witnesses;  the  latter  can 
hardly  fail  to  have  their  memory  so  refreshed  as  to  be  able  to  give 
the  requisite  evidence.     When  an  attestation  certificate  in  due  form 
is  read  over  to  the  testator,  in  the  presence  of  the  witnesses,  and 
the  wiU  is  then  subscribed  by  the  testator  in  their  presence,  and  they 
sign  their  names  as  attesting  witnesses,  it  affords  sufficient  evidence 
of  a  request  by  the  testator  that  the  witnesses  should  sign  the  will. 
At  all  events,  it  is  enough  to  submit  the  case  to  the  jury,  who  will 
be  authorized  to  find  the  requisite  request.     {Doe  v.  Roe,  2  Barh. 
200.     Rutherford  v.  Rutherford,  supra.     Remsen  v.  Brinkerhoff, 
26  Wend.  332.     Brinkerhoff  v.  Remsen,  8  Paige,  489-499.) 


WHEN  WILL  SHOULD  BE  READ.  491 

The  propriety  of  reading  over  the  whole  attestation  clause  at  the 
time  of  the  execution  of  the  will,  in  the  hearing  of  the  witnesses 
and  of  the  testator,  is  fully  shown  by  the  preceding  cases.  It  is 
not  necessary  to  read  over  the  entire  will,  unless  indeed  the  tes- 
tator be  blind  or  illiterate;  in  which  latter  cases  it  seems  to  be 
necessary. 

In  Jauncey  v.  Thorn,  (2  Bai^b.  Ch.  240,)  the  chancellor  said  that 
the  most  liberal  presumptions  in  favor  of  the  execution  of  wills  are 
sanctioned  by  courts  of  justice,  when  from  the  lapse  of  time  or  oth- 
erwise, it  might  be  impossible  to  give  any  positive  evidence  on  the 
subject.  Accordingly,  a  will  may  be  sustained,  even  in  opposition 
to  the  positive  testimony  of  one  or  more  of  the  subscribing  witness- 
es, who  either  mistakingly  or  corruptly,  swear  that  the  formalities 
required  by  the  statute  were  not  complied  with,  if,  from  other  testi- 
mony in  the  case,  the  court  or  jury  is  satisfied  that  the  contrary  was 
the  fact.  And  when  any  of  the  witnesses  are  dead,  or  in  such  a 
situation  that-  their  testimony  cannot  be  obtained,  proof  of  their 
signatures  is  received,  as  secondary  evidence  of  the  facts  to  which 
they  had  attested  by  subscribing  the  will  as  witnesses  to  the  execu- 
tion thereof.  {Jauncey  v.  Thorn,  szipra.  Nelson  v.  3IcGijfert, 
3  Barb.  Ch.  158.) 

Questions  with  regard  to  testamentary  capacity  and  the  compe- 
tency of  the  subscribing  witnesses  belong  more  appropriately  to 
courts  of  probate,  and  will  be  found  discussed  at  large  in  treatises 
devoted  to  that  subject,  and  the  law  of  evidence.  In  this  state,  as 
wills,  whether  relating  solely  to  real  or  to  personal  proi)erty,  or  to 
both,  are  required  to  be  executed  by  the  same  formalities,  the  doc- 
trines we  have  been  considering  apply  as  well  to  courts  of  common 
law,  as  to  those  having  the  exclusive  jurisdiction  in  testamentary 
matters.  Some  of  the  decisions  to  which  we  have  adverted  were 
made  in  cases  originating  in  courts  of  probate,  and  others  in  actions 
at  common  law.  (See  Willard  on  Ex'rs,  97  to  118,  and  the  cases 
there  cited.) 

With  regard  to  codicils,  it  is  only  necessary  to  add,  that  the  term 
■wills,  as  used  in  the  statute,  includes  codicils  as  well  as  wdUs. 
(2  B.  S.  68,  §  71.  Seymour  v.  Van  Wyck,  2  Seld.  120.  Howard 
v.  The  Union  Th.  Sem.  4  Sand/.  S.  C.  B.  82.) 


492  REVOCATION.    RErUBLICATION. 


Section  V. 
Of  the  Revocation  of  Devises,  and  of  Republication. 

The  doctrine  with  regard  to  the  revocation  of  wills  necessarily 
embraces  all  that  can  be  said  on  the  subject  of  revocation  of  devises, 
"What  is  affirmed  of  the  first  is  applicable  also  to  the  last.  It  is  of 
the  very  essence  of  a  will  that  all  its  provisions  are  under  the  con- 
trol and  direction  of  the  testator  until  his  death.  Until  that  event 
it  is  said  to  be  ambulatory.  {Dan  v.  Brown,  4  Cowen,  490.  Mat' 
te7'  of  MiclieU,  14  John.  324.)  And  the  testator  may  revoke  it  in. 
whole  or  in  part. 

A  subsequent  will  does  not  revoke  a  prior  one,  unless  it  contains 
a  clause  of  revocation,  or  be  inconsistent  with  it;  and  if  the  incon- 
sistency be  only  partial,  it  is  a  revocation  jiro  tanto  only.  {Brant 
V.  Wilson,  8  Coiven,  m.     Nelson  v.  3IcGiffert,  3  Barh.  Ch.  158.) 

At  the  revision  in  1830  it  was  supposed  to  be  possible  so  to  de- 
fine the  law  with  respect  to  revocations  of  wills  as  to  leave  little  or 
nothing  open  to  the  discretion  of  the  courts.  The  statute,  there- 
fore, in  the  first  place  re-enacted,  wdth  some  slight  changes,  the  old 
law  with  respect  to  such  revocations  made  by  the  testator  himself, 
animo  revocandi,  and  in  the  next  place  provided  for  the  cases  of 
implied  revocation  occasioned  by  changes  of  the  testator's  social  re- 
lations, or  subsequent  dealings  with  his  property. 

The  first  class  of  revocations  is  embraced  in  the  42d  section. 
(2  R.  S.  64.)  It  provides  that  no  will  in  writing,  excejit  in  the 
cases  thereinafter  mentioned,  nor  any  part  thereof,  shall  be  revoked 
or  altered,  otherwise  than  by  some  other  will  in  writing,  or  some 
other  writing  of  the  testator,  declaring  such  revocation  or  altera- 
tion, and  executed  with  the  same  formalities  with  which  the  will 
itself  was  required  by  law  to  be  executed;  or  unless  such  will  be 
burnt,  torn,  canceled,  obliterated  or  destroyed,  with  the  intent  and 
for  the  purpose  of  revoking  the  same,  by  the  testator  himself,  or  by 
another  person  in  his  -  presence,  by  his  direction  and  consent;  and 
when  so  done  by  another  person,  the  direction  and  consent  of  the 
testator  to  the  fact  of  such  injury  or  destruction  shall  be  proved  by 
at  least  two  witnesses. 

The  most  obvious  mode  of  revoking  a  prior  wiU  is  by  an  express 
clause  in  a  subsequent  wiU  revoking  aU  former  wiUs.     In  such  a 


IMPLIED  REVOCATION.  493 

case  there  can  be  no  doubt  as  to  the  intention  of  the  testator.  It 
is  recommended  to  all  persons  engaged  in  the  preparation  of  testa- 
mentary writings,  to  leave  no  doubt  on  this  jioint;  but  if  it  be  tlie 
intention  of  the  testator  to  revoke  all  previous  testamentary  dispo- 
sitions of  his  property,  or  of  any  of  it,  it  is  the  part  of  wisdom  so  to 
declare  in  explicit  terms. 

It  is  the  intention  of  the  testator  to  revoke  his  will  which  consti- 
tutes the  revocation.  The  mere  act  of  canceling  a  will  is  not  a 
revocation,  unless  it  be  done  animo  revocandi.  (Jackson  v.  Hal- 
loway,  7  John.  394.)  On  this  principle,  when  the  testator  made 
obliterations  in  his  will  already  executed,  not  with  an  intent  to  de- 
stroy the  devise  already  made,  but  to  enlarge  it,  by  extending  it  to 
lands  subsequently  acquired;  and  made  interlineations  and  correc- 
tions which  could  not  operate  from  their  not  being  attested  accord- 
ing to  law,  it  was  held  that  the  will  remained  operative  as  origin- 
ally executed. 

It  requires  the  same  mental  capacity  to  revoke  a  will  by  ca'ticel- 
lation,  burning,  &c.  as  it  does  to  make  a  will  originally.  The  act 
of  cancellation  must  be  accompanied  by  the  intention.  Both  must 
concur.  A  lunatic  can  have  no  such  intention.  If  a  party  is  in- 
competent to  make  a  Mill,  he  is  incompetent  to  revoke  it,  either  by 
a  physical  destruction  of  the  instrument,  or  by  an  express  revoca- 
tion by  a  will  in  writing.  {Smith  v.  Wait,  4  Barb.  28.  Nelson 
V.  McGiffert,  3  Barb.  Ch.  158.) 

The  revised  statutes  have  sought  to  define  the  cases  of  implied 
revocation,  arising  from  some  change  in  the  social  relations  of  the 
testator,  some  different  disposition  of  his  property,  or  from  a  sub- 
sequent will,  not  expressly  revoking  a  former  one,  but  making  de- 
vises incompatible  with  those  in  the  foi-mer  instrument.  These 
questions  formerly  rested  on  the  decisions  of  the  courts,  and  with 
respect  to  some  of  them  there  was  a  contrariety  of  opinion.  It  was 
held  that  a  subsequent  marriage  and  birth  of  a  child  amounted  to 
an  implied  revocation  of  a  will  either  of  real  or  personal  property; 
but  that  such  presumjjtive  revocation  might  he  rebutted  by  circum- 
stances. To  work  a  revocation  it  required  the  concurrence  of  both 
circumstances,  marriage  and  the  birth  of  a  child.  Neither  circum- 
stance alone  was  enough  for  that  purpose.  Neither  this  or  any 
other  implied  revocation  was  within  the  statute  of  frauds.  (Burch 
V.  Wilkins,  4  John.  Ch.  506.)  The  subject  was  fully  examined, 
and  the  English  cases  reviewed,  by  the  chancellor,  in  the  case  last 


494  IMPLIED  REVOCATION. 

cited;  and  it  was  that  case  which  led  to  the  adoption  of  the  lej^is- 
lative  provision  on  the  suhject.  It  is  contiiincd  in  the  43d  s<'cti<jn. 
(2  R.  S.  64.)  It  is  there  enacted  that  if  after  the  making  of  any 
will  disposing  of  the  whole  estate  of  the  testator,  such  testator  shall 
marry,  and  have  issue  of  such  marriage,  born  either  in  his  lifetime 
or  after  his  death,  and  the  wife  or  the  issue  of  such  marriage  shall 
he  living  at  the  death  of  the  testator,  such  will  shall  be  deemed  re- 
voked, unless  provision  shall  have  been  made  for  such  issue  by  some 
settlement,  or  unless  such  issue  shall  be  provided  for  in  the  will,  or 
in  such  way  mentioned  tlierein  as  to  show  an  intention  not  to  make 
such  provision;  and  no  other  evidence  to  rebut  the  presumption  of 
such  revocation  shall  be  received.  This  last  provision,  excluding 
parol  evidence  to  rebut  the  implication  of  a  revocation,  was  inserted 
to  repudiate  the  suggestion  to  the  contrary  by  the  chancellor,  in 
Burch  V.  Wilkins,  (supra.)  To  prevent  marriage  and  the  birth 
of  a  cliild  from  working  a  revocation  of  the  will,  the  pro\-ision  for 
such  child  must  either  be  contained  in  the  will,  or  some  settlement, 
or  be  so  mentioned  in  the  will  as  to  show  an  intention  not  to  make 
such  provision.  The  intention,  which  is  to  govern,  must  thus  be 
indicated  by  some-  writing,  and  cannot  be  made  out  by  extrinsic 
oral  evidence. 

It  is  not  important  whether  the  testator,  at  the  time  he  made  his 
will,  was  a  bachelor,  or  a  widower,  or  a  married  man,  with  chil- 
dren. If  he  loses  his  wife,  and  again  marries  and  has  a  child  by 
his  second  wife,  he  falls  within  the  letter  as  well  as  spirit  of  the  act. 
{Havens  v.  Van  Den  Burgh,  1  Denio,  27.) 

Another  instance  of  implied  revocation  by  marriage  occurred 
where  an  unmarried  woman  having  executed  a  will,  should  marry. 
This  act  is  declared  to  be  a  revocation  of  her  will.  This  was  so  at 
common  law,  upon  the  ground  that  it  is  of  the  essence  of  a  will  that 
it  should  be  valid  during  the  remainder  of  the  devisor's  life.  For 
this  reason  the  will  of  a  feme  sole  ceased  upon  her  becoming  covert. 
(Doe  V.  Staples,  2  D.  &.  E.  696,  per  Lord  Kenyon.)  The  prin- 
ciple on  which  the  common  law  was  based  sprung  from  the  disabil- 
ity of  a  married  woman  to  devise  her  estate.  The  revised  statutes 
have  adopted  this  provision  without  qualification.  Since  the  act 
of  1860,  chap.  90,  and  the  act  of  1849,  relative  to  married  women, 
(L.  of  1849,  ch.  375,)  have  in  a  great  measure  removed  the  disabil- 
ity of  married  women,  the  common  law  basis  of  the  principle  is  in 


IMPLIED  REVOCATION.  495 

a  great  measure  removed.  The  statute,  however,  remains  unalter- 
ed, and  it  is  believed,  is  still  obligatory. 

By  the  common  law,  an  agreement  or  covenant,  made  for  a  val- 
uable consideration,  to  convey  lands,  which  had  been  previously 
devised  by  will,  operated  in  equity,  though  not  at  law,  as  a  revoca- 
'  tion  of  such  devise.  In  cases  of  this  kind  the  legal  estate  passed  to 
the  devisee;  but  the  court  of  chancery  would  compel  him  to  convey 
it  to  the  person  entitled  under  the  equitable  agreement.  (Cotter  v. 
Layer,  2  P.  Wms.  623,  626.)  The  revised  statutes  provide  for  such 
cases  and  prevent  the  agreement  of  the  devisee  from  operating  as  a 
revocation,  either  at  law  or  in  equity.  They  direct  that  the  property 
shall  pass  by  the  devise,  subject  to  the  same  remedies  for  a  specific 
performance  or  otherwise,  against  the  devisee,  as  might  be  had 
by  law  against  the  heirs  of  the  testator,  if  the  same  had  descended 
to  them.     (2  R.  S.  64,  §  45.  Langdon  v.  A  star's  Ex'rs,  2  Smith,  9.) 

It  was  held  more  than  a  century  ago,  that  if  A.  devises  lands, 
and  then  makes  a  mortgage  thereof  in  fee,  it  is  a  revocation  in  law, 
but  otherwise  in  equity.  {Hall  v.  Dimch,  1  Vern.  329,  apjyroved 
in  Sparroiv  v.  Hardcastle,  3Atk.  805.)  It  was  deemed  expedient 
by  the  legislature,  at  the  time  of  the  revision,  that  the  rule  in  this 
respect  should  be  uniform  in  all  the  courts.  As  the  rule  in  equity 
was  thought  to  be  the  most  reasonable,  it  was  in  substance  adopted, 
by  declaring  that  a  charge  or  incumbrance  upon  any  real  or  personal 
estate,  for  the  purpose  of  securing  the  payment  of  money  or  the 
performance  of  any  covenant,  shall  not  be  deemed  a  revocation  of 
any  will  relating  to  the  same  estate  previously  executed;  but  the 
devises  and  legacies  therein  contained  shall  pass  and  take  effect 
subject  to  such  charge  or  incumbrance.  (2  II.  S.  64,  §  46.)  The 
statute  makes  no  distinction  between  a  mortgage  in  fee,  or  for  a 
term  for  years.  It  does  not  leave  one  rule  to  be  operative  at  law, 
and  another  in  equity;  but  makes  the  proA^sion  general. 

It  was  held,  too,  before  the  revised  statutes,  that  where  an  estate, 
specifically  devised,  was  sold  by  the  testator,  by  an  executory  con- 
tract, it  was  a  revocation  of  the  devise,  in  equity,  though  not  at 
law;  for  the  estate,  from  the  time  of  the  contract,  was  in  equity 
considered  as  the  estate  of  the  vendee.  And  although  such  execu- 
tory contract  was  revoked  by  the  purchasel-  and  testator,  so  that 
the  latter  was  restored  to,  and  died  seised  of  his  former  estate,  the 
devise  was  not  thereby  restored.  The  devise  being  once  revoked, 
could  not  be  made  efiectual  but  by  a  republication  of  the  will. 


496  IMPLIED  REVOCATION. 

(  WaIto7i  V.  Walton,  7  John.  Ch.  258.)  It  was  considered  essential 
to  the  validity  of  a  devise  of  lands,  under  the  former  law,  that  the 
testator  should  be  seised  thereof  at  the  time  of  making,'  the  will,  and 
should  continue  so  seised  without  interruption  until  his  decease. 
If  therefore  a  testator,  subsequently  to  his  will,  by  deed  aliened 
lands  which  he  had  disposed  of  by  such  will,  and  afterwards  ac- 
quired a  new  freehold  estate  in  the  same  lands,  such  newly  acquired 
estate  did  not  pass  by  the  devise,  which  was  necessarily  void. 
(1  Jarman  on  Wills,  170,  Perkins'  ed.)  We  have  seen  that  since 
the  revised  statutes,  a  will  may  be  so  drawn  that  it  will  operate  to 
pass  the  real  estate  of  which  the  testator  was  seised  at  the  time  of 
his  death.'  The  legislature  intended  to  provide  for  the  effect  of 
conveyances  by  the  testator,  upon  devises  made  by  him,  and  to 
make  the  rule  uniform  at  law  and  in  equity.  It  was  therefore 
enacted,  that  a  conveyance,  settlement,  deed,  or  other  act  of  a  tes- 
tator, by  which  his  estate  or  interest  in  property  previously  devised 
or  bequeathed  by  him  shall  be  altered,  but  not  wholly  devested, 
shall  not  be  deemed  a  revocation  of  the  devise  or  bequest  of  such 
property;  but  such  devise  or  bequest  shall  pass  to  the  devisee  or 
legatee  the  actual  estate  or  interest  of  the  testator,  which  would 
other\vise  descend  to  his  heirs,  or  pass  to  his  next  of  kin;  unless  in 
the  instrument  by  which  such  alteration  is  made,  the  intention  is 
declared  that  it  shall  operate  as  a  revocation  of  such  previous  devise 
or  bequest.  (2  R.  S.  Q5,  §  47.)  The  subsequent  section  provides 
that  if  the  provisions  of  the  instrument  by  which  such  alteration  is 
made  are  wholly  inconsistent  with  the  terras  and  nature  of  the 
previous  devise  or  bequest,  such  instrument  shall  operate  as  a  revo- 
cation thereof,  unless  such  provisions  depend  on  a  condition  or  con- 
tingency, and  such  condition  be  not  performed,  or  such  contingency 
do  not  happen.     (Id.  §  48.     Brant  v.  Wilson,  8  Coiven,  56.) 

A  devise  is  revoked  by  the  conveyance  of  the  land  devised,  not- 
withstanding the  conveyance  be  to  the  de\asee.  The  latter  will 
then  hold  under  the  deed  and  not  under  the  will.  (Hose  v.  Bose,  7 
Barb.  174.)  Nor  wdll  the  effect  be  altered,  when  the  testator  sells 
and  conveys  the  land  devised,  if  he  takes  back  a  bond  and  mortgage 
for  the  purchase  money  or  any  part  of  it.  {Adams  v.  Winnc,  7 
Paige,  97.  Broion  v.  Brown,  16  Barh.  572.)  The  conveyance  is  not 
merely  an  alteration  of  the  estate,  but  completely  devests  the  tes- 
tator of  all  title  to  it.  The  mortgage  taken  back  is  a  mere  security 
for  the  payment  of  the  money.     In  the  last  mentioned  case,  it  was 


POST  TESTAMENTARY  CHILDREK  497 

Baid  that  if  the  land  devised  is  reconveyed  to  the  devisor,  and  the 
title  is  in  him  at  the  time  of  his  death,  it  will  pass  under  the  will 
without  any  formal  republication  thereof.  This  was  put  upon 
the  ground  of  the  statute  (2  B.  S.  57,  §  5)  which  allows  a  testator 
to  devise  all  the  real  estate  of  which  he  is  the  owner  at  the  time  of 
his  death.  The  statute  abolishes  the  technical  rule,  that  a  devise 
passes  only  such  real  estate  as  the  testator  was  seised  of  at  the  time 
of  making  the  will;  but  the  intention  must  be  expressed  to  pass 
the  estate,  and  such  intention  will  be  regarded.  (Pond  v.  Bergh, 
10  Paige,  140,  149.  Arthur  v.  Arthur,  10  Barh.  9.  Ellison  v. 
Miller,  11  id.  332.     Knight  v.  Weathertvax,  7  Paige,  182.) 

The  revised  statutes  have  also  provided  for  the  case  of  post  tes- 
tamentary children,  or  such  children  as  are  born  after  the  making 
of  the  will,  either  in  the  lifetime  of  the  father  or  after  his  death. 
Having  provided  for  an  after-born  child  in  the  case  of  an  intestacy, 
there  was  an  obvious  and  equal  reason  for  some  similar  provision  in 
the  case  of  a  will.  If  after  the  making  of  his  will  by  the  testator, 
he  shall  have  a  child  born,  either  in  his  lifetime  or  after  his  death, 
and  shall  die  leaving  such  child  so  after-born  unprovided  for  by  any 
settlement,  and  neither  provided  for,  nor  in  any  way  mentioned  in 
his  will,  such  child,  it  is  enacted,  shall  succeed  to  the  same  portion 
of  the  father's  real  and  personal  estate  as  would  have  descended  or 
been  distributed  to  such  child  if  the  father  had  died  intestate,  and 
shall  be  entitled  to  recover  the  same  portion  from  the  devisees  and 
legatees  in  proportion  to  and  out  of  the  parts  devised  and  bequeathed 
to  them  by  such  will.  (2  B.  S.  65,  §  49.)  The  object  is  to  put 
Buch  child,  as  far  as  practicable,  in  the  same  situation  as  if  it  had 
been  in  being  when  the  will  was  made,  and  been  equally  provided 
for  by  the  testator.  The  presumption  is  a  fair  one,  that  it  shared 
the  regard  of  the  parent  equally  with  the  other  objects  of  his  bounty, 
though  not  provided  for  by  settlement  or  named  in  the  will.  If 
provision  were  made  for  it  by  settlement,  or  a  specific  provision  in 
the  will,  or  if  the  latter  directed  that  no  provision  should  be  made 
for  it,  the  statute  has  no  application  to  the  case,  but  leaves  it  to  be 
governed  by  the  will  or  settlement. 

No  distinction  whatever  is  made  by  the  statute,  between  specific, 
general,  or  residuary  legatees,  or  de\dsees,  and  none  was  probably 
intended.  The  object  was,  not  to  disturb  the  arrangement  which 
the  testator  had  made  in  the  disposition  of  his  property,  among  the 
several  objects  of  his  bounty,  except  so  far  as  to  compel  each  to 

Will.— 32 


498  EFFECT  OF  REVOCATION  ON  PRIOR  WILL. 

contribute  ratably,  out  of  that  which  he  would  be  entitled  to  ac- 
cording to  the  will,  for  the  purj)ose  of  making  up  the  distriljutive 
share  of  the  post  testamentary  child.  All  the  legacies,  therefore, 
have  to  abate  in  proportion  to  their  amount  and  value,  as  well  the 
residuary  legacy,  or  one  given  in  lieu  of  dower,  as  the  specific  and 
general  legacies.     {Mitchell  v.  Blain,  5  Paige,  590.) 

A  partition  made  amongst  tenants  in  common  is  not  such  a 
change  of  the  subject  of  tlie  devise  as  to  work  a  revocation  of  it. 
If  the  tenant  in  common  should  devise  his  undivided  moiety,  and 
then  make  partition  either  voluntarily,  or  it  be  made  by  order  of 
the  court  during  the  lifetime  of  the  testator,  the  devise  would  pass 
the  estate  in  severalty,  which,  at  the  making  of  the  will,  was  held 
in  common.  {Risley  v.  Baltinglass,  T.  Baymond,  240.  Barton  v. 
Croxally  Taml.  164.) 

A  conveyance,  to  have  the  effect  of  revoking  the  whole  will,  must 
be  coextensive  with  the  estate  devised.  If  it  be  but  of  a  part,  it 
affects  the  devise,  only  pro  tanto.  (Adams  v.  Winne,  7  Paige, 
101.  Herrington  v.  Budd,  5  Denio,  323.)  In  the  last  mentioned 
case  it  was  held  that  a  grant  in  fee,  reserving  rent,  with  a  clause  of 
re-entry,  is  a  revocation  of  a  prior  devise  of  the  same  lands  made 
by  the  grantor. 

The  revised  statutes  have  prevented,  in  certain  cases,  the  lapse 
of  a  devise  or  a  legacy — we  are  treating  only  of  devises.  If  the  tes- 
tator devises  real  estate  to  a  child,  or  a  lineal  descendant  of  the 
testator,  and  the  devisee  shall  die  during  the  lifetime  of  the  testa- 
tor, leaving  a  child  or  other  descendant  who  shall  survive  the  testa- 
tor, the  devise  does  not  lapse,  but  vests  in  the  surviving  child  or 
descendant  of  the  devisee,  as  if  such  devisee  had  survived  the  testa- 
tor and  died  intestate.  (2  R.  S.  QQ,  §  52.  Bishop  v.  Bishop,  4 
Hill,  138.) 

There  was,  at  one  time,  a  contrariety  of  opinion  as  to  the  effect 
of  the  revocation  of  a  subsequent  will,  in  setting  up  one  which  had 
previously  been  made.  The  courts  of  common  law  were  said  to  fa- 
vor the  revival  of  the  former  will,  but  the  ecclesiastical  courts  either 
allowed  a  different  presumption,  or  left  it  open  to  be  decided  by 
other  testimony.  The  question  does  not  seem  to  have  been  settled 
in  this  state  by  any  adjudication  prior  to  the  revised  statutes.  By 
those  statutes  it  is  put  at  rest  by  declaring  that  no  revocation  of  a 
second  will  shaU  revive  the  fijst  will,  unless  it  appears  by  the  terms 


EEPUBLICATION  OF  WILL.  499 

of  the  revocation  that  it  was  the  intention  of  the  testator  to  revive 
and  give  effect  to  the  first  will;  or  unless  after  such  destruction, 
cancelling  or  revocation,  he  shall  duly  republish  his  first  will. 
(2  R.  S.  66,  §  53.) 

A  republication  of  a  wdll  is  of  two  kinds,  express  and  construct- 
ive. Express  republication  arises  when  a  testator  repeats  those 
ceremonies  which  are  essential  to  constitute  a  valid  execution,  with 
the  avowed  design  of  republishing  the  will.  (1  Jarra.  on  Wills, 
202,  Perkins'  ed.  Will,  on  Ex'rs,  132.)  Constructive  republica- 
tion takes  i^lace  when  a  testator,  for  some  other  purpose,  makes  a 
codicil  to  his  ^vill;  in  which  case  the  effect  of  the  codicil,  if  not  neu- 
tralized by  internal  evidence  of  a  contrary  intention,  is  to  republish 
the  will.  (Id.  and  Van  Cortland  v.  Kip,  1  Hill,  590.)  The  cod- 
icil need  not  be  actually  annexed  to  the  will,  in  order  to  operate  as 
a  republication.  When  the  codicil  is  so  executed  as  to  operate  as 
a  republication  of  the  will,  both  should  be  read  and  construed  to- 
gether as  one  entire  instrument.  The  effect  of  the  codicil  which 
republishes  a  will  is  to  bring  down  its  language  so  as  to  cause  it  to 
speak  as  of  the  date  of  the  codicil;  and  this  whether  the  immediate 
subject  of  the  codicil  be  real  or  personal  property.     (Id.) 

The  statute  above  cited  has  reference  only  to  a  republication  of 
a  will  which  has  been  previously  revoked.  The  object  of  it  was  to 
prevent  a  revocation  from  having  the  effect  ^^er  se  of  reviving  the 
first  will,  unless  it  should  appear  by  the  instrument  by  which  the 
revocation  was  effected,  that  it  was  the  testator's  intention  to  give 
effect  to  the  former  will. 

But  occasions  may  arise  when  the  testator  may  desire  to  repub- 
lish a  will,  which  has  never  been  revoked;  so  that  it  may  speak 
from  the  day  of  such  republication.  The  statute  does  not  prevent 
such  republication,  but  leaves  the  matter  to  be  regulated  by  the 
general  laws  on  the  subject.  It  may  thus  be  republished  by  repeat- 
ing the  solemnities  attending  its  first  execution,  or  by  a  duly  at- 
tested codicil.  (Mooers  v.  White,  6  John.  Ch.  375.  Va7i  Cortland 
v.  Kip,  supra.  Jackson  v.  Potter,  9  John.  312.)  Such  codicil  may 
give  effect  to  a  devise  in  the  original  will  which  was  void  by  reason 
of  the  devisee  being  a  necessary  subscribing  witness.  So  also  if  the 
original  will  be  defectively  executed,  the  effect  of  the  codicil,  if 
properly  drawn  and  attested,  whether  annexed  to  the  will  or  not,  is 
to  remove  those  imperfections  and  give  efficacy  to  the  will.     (Barnes 


500  VOID  DEVISES. 

V.  Croiue,  1  Ves.jun.  486,  497.  Atherton  v.  liohins,  1  Adol.  & 
Ellis,  423.  Havens  v.  Foster,  14  Pick.  543.  ilft7e«  v.  Boyden,  3 
«cZ.  216.  7V(/o«  V.  Waller,  7  Fes.  98.)  Even  though  the  codicil 
relates  only  to  personal  i)roperty,  and  expresses  no  intention  as  to 
republication  of  the  will,  it  is  a  republication  of  a  will  devising  real 
estate.     {Id.) 

But  though  such  be  the  ordinary  effect  of  a  codicil,  yet  it  may 
be  so  expressed  as  to  have  only  the  effect  of  a  republication,  giving 
no  different  operation  to  the  several  instruments  (if  there  be  more 
than  one  codicil)  from  that  which  they  would  have  if  they  stood 
upon  their  original  execution,  and  therefore  not  make  the  will  and 
previous  codicils  speak  as  from  the  date  of  the  republication,  for. 
the  purpose  of  reviving  legacies  which  have  been  adeemed  or  sat- 
isfied.   (Langdon  v.  Astor's  Ex'rs,  2  Smith,  9.) 

Section  VI. 
Of  Void  Devises,  and  the  Effect  thereof. 

There  are  several  cases  in  which  devises  are  absolutely  void.  By 
the  common  law,  if  the  testator  makes  the  same  disposition  of  his 
estate  as  the  law  would  have  done  if  he  had  been  silent,  the  will 
being  unnecessary,  is  void.  Therefore,  if  the  testator  devises  his 
real  estate  in  fee  to  his  heirs  at  law,  the  devise  is  a  nullity,  and  the 
heir  takes  under  the  law  of  descent,  which  is  the  better  title.  This 
rule  has  been  changed  in  England,  so  as  to  require  the  devisees  to 
take  under  the  will  and  not  by  descent,  (3  and  4  Wm.  4,  ch.  106,) 
but  it  remains  still  in  force  in  this  state.  A  devise  which  we  some- 
times see  in  wills,  that  the  widow  of  the  testator  shall  have  her 
dower,  is  void;  for  she  takes  her  dower  by  the  common  law,  and  it 
is  not  in  the  power  of  the  husband  to  prevent  it.  If,  however,  the 
testator  devises  a  life  estate  to  his  wife  in  a  part  of  his  lands  and 
gives  the  rest  to  his  children,  the  widow  will  take  the  devise  and 
her  dower  besides;  the  first  under  the  will  and  the  last  by  the  com- 
mon law.  {Jackson  v.  Ohurchill,  7  Coiven,  287.)  We  have  seen, 
elsewhere,  when  the  widow  is  put  to  her  election  between  a  devise 
and  her  dower.     {See  ante,  jyage  69.) 

We  have  seen  in  a  previous  section  that  no  devise  of  real  estate 
for  the  benefit  of  any  person  and  his  successor  or  successors  in  any 
ecclesiastical  office,  shall  vest  any  estate  or  interest  in  such  person 
or  his  successor.     The  title  in  such  a  case,  on  the  death  of  the  tes- 


VOID  DEVISES,  IN  CHARITY.  5OI 

tator,  does  not  descend  to  the  heirs  of  the  devisor,  but  vests  in  the 
people  of  the  state  of  New  York,  in  the  same  manner  and  with  the 
same  effect  as  if  the  person  holding  the  legal  title  thereto  had  died 
intestate,  and  without  heirs  capable  of  inheriting  such  estate. 
{L.  of  1855,  ch.  230.     2  R.  S,  621,  5th  ed.) 

The  devises  to  charitable  corporations,  formed  under  the  act  of 
1848,  chapter  319,  and  the  amendments  thereof,  (2  B.  S.  623 
et  seq.  5th  ed.)  are  void,  if  the  will  containing  the  same,  being 
made  by  a  person  leaving  a  wife  or  child  or  parent,  has  not  been 
made  and  executed  at  least  two  months  before  the  death  of  the 
testator;  and  if  the  testator  has  devised  or  bequeathed  to  the  in- 
.  stitution  or  corporation  more  than  one-fourth  of  his  or  her  estate, 
after  the  payment  of  his  or  her  debts.  It  is  in  such  case  valid  to 
the  extept-of  the  one-fourth  and  void  for  the  excess.  The  statute 
does  not  direct  how  the  estate  so  unlawfully  de\dsed  shall  go,  but 
leaves  it  to  descend  to  the  heir  at  law,  if  it  be  real  estate,  and  to 
pass  to  his  next  of  kin  if  it  be  personal. 

This  prohibition  has  been  extended  and  made  general  by  the  act 
of  April  13,  1860,  page  607.  It  is  there  enacted,  that  no  person 
having  a  husband,  wife,  child  or  parent,  shall,  by  his  or  her  last 
will  and  testament,  devise  or  bequeath  to  any  benevolent,  charitable, 
literary,  scientific,  religious  or  missionary  society,  association  or 
corporation,  in  trust  or  otherwise,  more  than  one-half  part  of  his  or 
her  estate,  after  the  payment  of  his  or  her  debts;  (and  such  devise 
or  bequest  shall  be  valid  to  the  extent  of  one  half  and  no  more.) 
It  is  thus  made  applicable  to  devises  and  bequests  to  any  of  the 
societies  therein  named,  and  is  not  confined  to  such  as  were  formed 
under  the  act  of  1848.  It  preserves  for  the  kindred  of  the  devisor 
a  larger  portion  of  the  estate,  and  it  renders  the  devise  or  bequest 
of  the  excess  above  one-half,  to  the  purposes  of  charity  therein  in- 
dicated, without  reference  to  the  time  when  the  will  was  made; 
whether  by  the  testator  in  extremis,  or  in  the  vigor  of  mental  and 
bodily  health.  The  tendency  of  the  law,  and  such  probably  was 
the  object  of  its  framers,  will  be  to  diminish  charitable  devises  and 
bequests  by  persons  having  either  of  the  relatives  above  mentioned. 
It  thus  gives  a  preference  to  the  claims  of  consanguinity  over  those 
of  benevolence,  with  respect  to  estates  of  deceased  persons.  If  an 
individual  desires  to  devote  his  wealth  to  religious,  benevolent  or 
public  purposes,  he  is  not  prohibited  from  doing  so  in  his  Hfetime, 
when  he  can  see  to  the  administration  of  it  himself.     (See  remarks 


502  DEVISES  VOID  FOR  UNCERTAINTY. 

of  tT\e  Judge  in  Beelcman  v.  The  People,  27  Barb.  305,  and  Wil- 
lard's  Eq.  Juris.  576.) 

We  have  seen  that  a  devise  to  an  alien,  not  authorized  by  statute 
to  hold  real  estate,  is  void.     (2  R.  S.  57.) 

A  devise  may  become  void  by  the  death  of  the  devisee  subsequent 
to  the  making  of  the  will,  and  before  the  death  of  the  testator. 
This  is  the  common  law  rule;  but  it  has  been  changed  in  this  state, 
where  the  devise  is  to  a  child  or  other  descendant  of  the  testator, 
and  such  devisee  shall  die  before  the  testator,  leaving  a  child  or 
other  descendant  who  shall  survive  the  testator.  In  such  a  case, 
the  devise  does  not  lapse,  but  vests  in  the  surviving  child  or  other 
descendant  of  the  devisee,  as  if  the  devisee  had  survived  tne  testa- 
tor, and  had  died  intestate.  (7c?.  QQ,  §  52.)  In  other  cases  the 
common  law  is  left  to  take  its  course.  {Bishop  v.  Bishop,  4  Hill, 
139.     Chrystie  v.  Phyfe,  22  Barb.  195.) 

A  devise  may  be  void  for  uncertainty.  The  uncertainty  may  be 
with  regard  to  the  person  of  the  devisee,  or  the  subject  matter  of 
the  devise. 

An  instance  of  the  first  will  be  found  in  Waite  v.  Templer,  (2 
Sim.  524.)  In  that  case  the  legacy  was  in  these  words  :  "I  give 
one-fifth  of  my  remaining  property  to  Thomas  Palby,  Esq.  yxa.., 
who  resided  in  Stonehouse,  near  Plymouth,  Devonshire,  when  I  left 
England,  or  to  his  heirs,  executors,  administrators  or  assigns  forev- 
er." The  testator  left  England  in  1784,  Thomas  Palby,  jun.  died 
in  1798,  and  left  his  father  his  only  next  of  kin  at  his  death.  The 
testator  died  in  1810.  The  legacy  lapsed  by  the  death  of  the  lega- 
tee in  the  lifetime  of  the  testator,  and  the  legacy  over  to  his  heirs 
&:c  was  held  to  be  void  for  uncertainty. 

So  also,  a  bequest  by  a  testator,  that  "  a  handsome  gratuity"  be 
given  to  each  of  his  executors,  has  been  held  to  be  void  for  uncer- 
tainty, as  to  the  subject  of  the  gift.  (Jubber  v.  Jubber,  9  Sim. 
503.)  So  a  bequest  of  "some  of  my  best  linen,"  has  been  held  void 
for  uncertainty.     (Peck  v.  Halsey,  2  P.  Wms.  387.) 

There  must  be  such  a  description  of  the  estate  intended  to  be  de- 
vised, and  of  the  devisee,  that  both  the  estate  and  the  person  may 
be  ascertained;  otherwise  the  devise  is  void. 

It  remains,  under  this  head,  to  inquire  what  becomes  of  a  void 
devise,  when  it  lapses,  in  a  case  where  the  will  contains  a  residuary 
clause.     In  the  case  of  a  bequest  of  personal  property,  the  residu- 


VOID  DEVISES.  503 

ary  legatee  will  in  general  take  whatever  is  not  otherwise  well  dis- 
posed of  in  the  will.  The  rule  is  different  with  respect  to  devises. 
If  the  devise  be  void  when  the  will  was  made,  as,  if  the  devisee 
be  dead  at  that  time,  the  estate  will  go  to  the  residuary  devisee,  if 
it  be  drawn  in  a  sufficiently  comprehensive  manner.  In  the  case 
of  a  legacy  void  by  reason  of  the  death  of  the  devisee  after  the 
making  of  the  mU,  and  before  the  death  of  the  testator,  it  goes  to 
the  heir. 

This  subject  was  very  fully  examined  by  the  chancellor  in  Van 
Kleek  V.  The  Reformed  Dutch  Church,  (6  Paige,  600;  affirmed  20 
Wend.  457.)     He  came  to  the  conclusion  that  it  was  settled  in 
England  that  a  residuary  devise  of  real  estate,  or  "  of  all  my  estate 
not  before  disposed  of,"  carries  with  it  not  only  the  real  estate  in 
which  no  interest  is  devised  in  the  previous  parts  of  the  will,  but 
also  every  reversionary  and  contingent  interest  which,  in  the  events 
contemplated  by  the  testator  as  apparent  from  the  will  itself,  is  not 
whoUy  and  absolutely  disposed  of,  and  which  would  be  a'proper 
subject  of  devise  consistently  with  the  declared  intent  of  the  testa- 
tor.    The  rule  is  that  the  general  residuary  clause  will  carry  to  the 
devisee  all  reversionary  and  contingent  interests  not  previously  de- 
.  Tised,  unless  the  will  contain  special  indications  of  a  contrary  inten- 
tion; and  with  the  qualification,  that  the  will  is  to  be  taken  in 
connection  with  the  situation  of  the  testator's  property  and  fam- 
ily at  the  date  of  the  wiU.     This,  it  seems,  is  the  law  of  this  state. 
But  when  a   specific  devise  is  ineffectual,  through  want  of  the 
devisee's  capacity  to  take— as  when  the  devisee  is  a  religious  corpo- 
ration—the estate  goes  to  the  heir,  and  not  to  the  residuary  dev- 
isee.    (Id.) 

When  an  interest  in  real  estate  is  devised  to  a  widow  in  lieu  of 
dower,  and  she  elects  to  take  her  dower,  it  seems  such  interest  vests 
in  the  residuary  devisee.     (Bowers  v.  Smith,  10  Paige,  193  ) 


504  CONSTRUCTION  OF  DEVISES. 

CHAPTER  X. 

OF   THE   CONSTRUCTION    OF   DEVISES. 

Section  I. 
Of  the  General  Maxims  in  the  Construction  of  Wills. 

1.  The  primary  rule  in  the  constniction  of  a  will,  whether  it  re- 
lates to  real  or  personal  property,  is  that  the  intention  of  the  testa- 
tor, if  not  inconsistent  with  the  rules  of  law,  must  govern;  and  this 
intention  is  to  be  ascertained  from  the  whole  will  taken  together. 
{Bradhurst  v.  Bradhurst,  1  Paige,  331.  Covenhoven  v.  Shider, 
2  id.  122.  Rathbone  v.  Dyckman,  3  id.  9.  Crosby  v.  Wendell, 
6  id.  548.) 

This  rule  is  supported  by  all  the  adjudged  cases,  and  is,  more- 
over, declared  by  the  revised  statutes,  and  made  applicable  to  every 
instrument  creating  or  conveying,  or  authorizing  the  creation  or 
conveyance,  of  any  estate  or  interest  in  lands.  And  it  is  made  the 
duty  of  courts  of  justice  to  carry  into  effect  the  intent  of  the  parties, 
so  far  as  it  can  be  ascertained  from  the  whole  instrument,  and  is 
consistent  with  the  rules  of  law.  (1  R.  S.  748,  §  2.)  This  enact- 
ment is  merely  declaratory  of  the  principles  of  the  common  law  so 
far  as  it  relates  to  wills,  and  an  extension  of  the  same  principle  to 
deeds  which  were  formerly  governed  by  more  strict  rules. 

2.  A  will  and  codicil  are  to  be  taken  and  construed  together  as 
parts  of  one  and  the  same  instrument.  (  Westcott  v.  Cady,  5  John. 
Ch.  334.) 

3.  The  testator  must  be  presumed  to  have  used  words  in  their 
primary  and  ordinary  sense,  unless  there  is  something  in  the  situa- 
tion of  his  family,  or  in  his  will,  to  lead  to  a  contrary  conclusion. 
(Matter  of  Ballet,  8  Paige,  375.  Hone  v.  Van  Schaick,  3  Barb. 
Ch.  488,  reversed  3  Comst.  538,  but  the  above  principle  held  by  both 
courts.     Cromer  v.  Pinckney,  3  Barb.  Ch.  466.) 

4.  In  general,  technical  words  are  to  be  understood  in  a  technical 
sense;  but  if  by  taking  them  in  a  technical  sense,  the  intention  of 
the  testator  collected  from  the  whole  will,  cannot  be  supported,  but 
will  be  overthrown,  a  liberal  and  popular  meaning  may  be  attrib- 
uted to  them.     As,  for  instance,  the  word  ^^  inherited"  may  be  ap- 


MAXIMS  OF  CONSTRUCTION.  505 

plied  to  lands  devised  or  conveyed  by  a  parent  or  ancestor.  {De 
Kay  V.  Irving,  5  Den.  646,  affirming  9  Paige,  521.  2  P.  Wms. 
741.  Hodgson  v.  Ambrose,  1  Doug.  341.)  The  word  "  devise"  is 
sometimes  used  for  "bequeath,"  and  vice  versa,  without  impairing 
the  will.  (3Iijers  v.  Uddy,  31.  S.)  And  "  or"  is  sometimes  con- 
strued as  "  and,"  and  e  converso.  (Richardson  v.  Spraag,  1  P. 
Wm.  434.     Read  v.  Snell,  2  Ath.  643.) 

5.  The  situation  of  the  testator's  family  and  collateral  circum- 
stances, may  be  resorted  to  in  construing  a  will.  So  also  the  situ- 
ation of  his  property,  and  his  social  relations,  are  to  be  regarded. 
(  WoJfe  V.  Van  Nostrand,  2  Comst.  436.  Cromer  v.  Pinchiey,  3 
Barb.  Ch.  466.) 

6.  The  general  intent  of  the  will  is  to  prevail  over  expressions 
indicating  a  different  particular  intent.  (Parks  v.  Parks,  9 
Paige,  107.) 

7.  When  a  will  is  susceptible  of  a  two  fold  construction,  one  of 
which  avoids  and  the  other  upholds  it,  the  latter  must  be  adopted. 
(3Iason  v.  Jones,  2  Ba7'b.  229.) 

8.  If  two  provisions  of  a  will  are  repugnant,  so  that  both  cannot 
stand,  the  last  will  prevail.  (Bradstreet  v.  Clark,  12  Wend.  602. 
Covenhoven  v.  Shuler,  supra.     Parks  v.  Parks,  supra.) 

9.  But  a  subsequent  clause  apparently  irreconcilable  with  pre- 
cedent provisions,  will  be  construed  in  connection  with  them, 
and  may  be  rejected  if  repugnant  to  the  intention  of  the  tes- 
tator, as  derived  from  the  whole  will.  {Bradly  v.  Amidon,  10 
Paige,  235.) 

10.  The  clear,  literal  interpretation  of  words  may  be  departed 
from,  if  they  will  bear  another  construction;  and  the  strict  gram- 
matical sense  may  be  neglected.  {Bradhurst  v.  Bradhurst,  1  id. 
331.     Rathbone  v.  Dyckman,  3  id.  9.) 

11.  In  construing  wills  words  may  be  transposed  or  rejected  to 
get  at  the  correct  meaning.  {3Iason  v.  Jones,  2  Barb.  229.)  Words 
which,  if  allowed  to  stand,  would  produce  repugnant  and  incon- 
sistent results,  may  be  rejected.     (Pond  v.  Bergh,  10  Paige,  140.) 

12.  Words  which  admit  of  a  twofold  construction,  shall  be 
deemed  to  have  been  used  in  that  sense  which  will  render  the  de- 
vise valid,  and  not  in  a  sense  which  would  render  the  clause  of  the 
will  in  which  they  are  used  a  mere  nullity.  (Pond  v.  Bergh,  su- 
pra.   Butler  V.  ButUry  3  Barb.  Ch.  304.) 


506  WITH  REFERENCE  TO  THE  ESTATE. 

13.  Tlio  title  of  the  heirs  being  derived  from  the  law  of  descent, 
is  not  to  be  defeated  by  an  uncertain  devise. 

14.  The  punctuation  of  sentences  may  be  changed,  and  a  passage 
be  read  as  if  inserted  in  a  parenthesis,  when  necessary  to  arrive 
at  tlie  sense.  ( Wolfe  v.  Van  Nostrand,  2  Comstock,  439,  ^^er 
Gardiner,  J.) 

The  foregoing  rules  may  be  greatly  multiplied;  but  others  will 
be  suggested  in  succeeding  sections.  The  subject  is  examined  by 
English  wi-iters,  and  the  cases  are  fully  reviewed.  {^See  Cruise's 
Dig.  tit,  38,  Devise,  ch.  9,  and  notes  to  Greenl.  ed.  2  Powell  on 
Devises  J  by  Jarm.pp.  5-11.      Wigram  on  Wills,  pp.  11-14.) 

Section  II. 

0/  the  Construction  with  reference  to  the  Estate,  the  Property 
devised,  and  the  Person  of  the  Devisee. 

1.  Of  the  Estate. 

The  usual  words  necessary  to  create  a  devise  are,  "  give  and  de- 
vise." These  are  the  appropriate  technical  words  in  a  will  disposing 
of  a  fee  or  a  freehold  interest,  as  "  give  and  bequeath"  are  for  dis- 
posing of  personal  property  and  chattel  interests.  But  any  other 
words  which  sufficiently  show  the  intention  of  the  testator,  to  dispose 
of  his  lands,  or  any  part  thereof,  will  be  sufficient  for  that  purpose. 

We  have  seen,  in  the  former  part  of  this  treatise,  that  the  mean- 
ing of  the  term  estate,  in  a  legal  sense,  is  different  from  its  popular 
acceptation.  It  imports  in  legal  acce})tation  the  interest  which  the 
owner  has  in  the  land,  rather  than  the  land  itself,  which  is  the 
popular  notion  with  regard  to  it.  (See  Part  1,  ch.  1,  p.  47.)  A  de- 
vise of  a  testator's  estate  generally  passes  both  real  and  personal 
projierty,  and  may  include  a  debt  secured  by  a  mortgage.  (Jack- 
son V.  De  Lancy,  11  John.  365;  offirined,  13  id.  536.)  The  word 
estate  passes  a  fee,  without  any  words  of  limitation.  (Id.  Jack- 
son V.  Merrill,  6  John.  185.)  So  a  devise  of  all  one's  right  cJlrries 
a  fee  simple  to  the  devisee.  (Neivkirk  v.  Neivkirk,  2  Caines,  345.) 
A  general  devise  of  real  estate  to  A.,  to  be  at  his  absolute  disposal, 
passes  a  fee.     (McLean  v.  McDonald,  2  Barb.  534.) 

No  technical  words  are  necessary  to  devise  a  fee,  and  the  inten- 
tion of  the  testator,  to  be  collected  from  the  whole  will,  is  to  govern. 
(Jackson  v.  Babcock,  12  John.  389.)  These  principles  are  adopted 
by  the  revised  statutes,  and  made  applicable  to  grants  as  well  as  to 


WITH  REFERENCE  TO  ESTATE.  507 

devises.  The  term  *'  heirs"  ia  not  required  in  any  case  to  convey  a 
fee  in  land;  and  every  devise  of  real  estate,  or  any  interest  therein, 
passes  all  the  estate  or  interest  of  the  testator,  unless  the  intent  to 
pass  a  less  estate  or  interest  appears  by  express  terms,  or  is  neces- 
sarily implied  in  the  terms  of  the  grant.     (1  B.  S.  748,  §  1.) 

A  reference  to  a  few  of  the  cases  will  be  sufficient  to  illustrate 
the  principle  applicable  to  these  cases.  In  Jackson  v.  Babcock, 
{supra,)  the  testator  devised  as  follows :  "  I  give  to  my  wife,  after 
payment  of  debts,  &c.  all  my  estate,  real  and  personal,  that  I  may 
be  in  possession  of  at  my  decease,  to  be  at  her  absolute  disposal, 
according  to  an  agreement  made  and  entered  into  with  her  on  the 
27th  October,  1802,  and  previous  to  our  marriage;  it  being  my  in- 
tention, if  my  said  wife  should  die  before  me,  that  my  real  and  per- 
sonal estate  shall  be  divided  among  my  said  children,  their  heirs 
and  assigns."  It  was  held  by  the  supreme  court  that  the  wife  took 
an  estate  in  fee,  not  by  implication,  but  by  force  of  the  words  ''  all 
my  estate  to  be  at  her  absolute  disposal;"  that  as  by  reference  to 
the  agreement  in  writing  mentioned  in  the  will,  it  appeared  that  it 
was  intended,  that  after  the  death  of  one,  the  other  should  have  the 
full  benefit  of  survivorship  in  the  joint  estate  created  by  the  agree- 
ment, it  showed  the  intention  of  the  testator  to  dispose  of  the  fee; 
and  the  use  of  the  word  heirs,  in  the  deA'ise  to  the  children,  did  not 
show  an  intention  in  the  testator  to  limit  the  preceding  devise  to 
his  wife  to  her  life  only. 

In  the  subsequent  case  of  Jackson  v.  Hoivarcl,  (17  John.  281,) 
the  words  of  the  will,  without  any  other  words  to  explain  or  control 
them,  were,  "  my  property,  after  my  debts  are  paid,  I  leave  to  my 
beloved  wife  A.,  and  wish  her  to  educate  my  daughter  with  care 
and  affection."  It  was  held  that  the  wife  took  the  real  estate  in 
fee,  and  the  personal  absolutely. 

A  devise  by  implication  depends  upon  the  intention  of  the  testa- 
tor; and  one  implication  may  be  rebutted  by  another  equally  strong. 
If  the  particular  devise  or  bequest  cannot  be  reasonably  accounted 
for,  except  upon  the  supposition  that  the  testator  intended  to  make 
the  corresponding  disposition  of  other  parts  of  his  property  or  of 
the  previous  estate  therein,  courts  will  imply  such  disposition. 
(Bathbone  v.  Dyckman,  3  Paige,  9.) 

Under  the  law  in  force  before  the  revised  statutes,  if  the  devise 
contained  no  words  of  limitation,  or  perpetuity,  the  devisee  could 
take  only  a  life  estate.     (Jackson  v.  Wells,  9  John.  222.     Same  v. 


508  WORDS  OF  LBHTATION. 

Umhler,  14  id.  198.)  We  have  seen  what  other  words  would 
supersede  tlie  necessity  of  words  of  limitation,  formerly;  and  that 
those  words  are  not  now  required  in  order  to  create  an  estate  in  fee. 

Nevertheless,  a  careful  conveyancer,  in  framing  a  will  or  deed, 
will  use  the  words  which  necessarily  carry  the  fee  simple,  and  which 
leave  no  room  for  construction;  or  if  a  less  estate  be  intended  to  be 
conveyed,  will  so  express  it  as  to  leave  no  room  for  argument  or 
dispute.  /  give  and  devise  to  A.  31.,  his  heirs  and  assigns  forever  y 
is  the  appropriate  expression  for  a  devise  of  an  estate  in  fee  simple, 
and  can  as  easily  be  used  as  an  equivocal  expression. 

With  regard  to  introductory  words  in  a  will,  it  should  be  remem- 
bered that  they  are  often  words  of  course,  and  unless  the  words  of 
disposition  in  the  clause  of  the  devise  are  connected  in  terms  or 
sense,  with  the  introductory  clause,  they  are  not  sufficient  to  en- 
large the  estate  subsequently  devised,  into  a  fee.  {Barheydt  v. 
JBarheydt,  20  Wend.  576,  j^er  Nelson,  Ch.  J.  Van  Derzee  v.  Van 
Derzee,  30  Barb.  331.)  Nevertheless,  in  the  inquiry  concerning 
the  intention  of  the  testator,  in  relation  to  the  quantum  of  estate 
de\ased,  the  introductory  clause  of  the  will  is  very  material.  (Fox 
V.  Phel])s,  17  Wend.  393,  per  Bronson,  J.) 

It  sometimes  happens  that  in  the  same  will  there  are  various  de- 
vises, and  to  different  persons,  some  of  which  are  invalid  as  conflict- 
ing with  some  rule  of  law.  In  this  class  of  cases  the  question  will 
sometimes  arise  whether  the  whole  will  is  void,  or  only  the  devises 
which  are  illegal.  The  leaning  of  the  courts,  in  modern  times,  is 
more  and  more  to  the  preservation  of  such  parts  of  the  will  as  may 
be  separated  from  the  rest  without  a  disruption  of  the  whole.  It  is 
therefore  a  well  established  rule,  that  where  the  devises  are  dis- 
tinct, or  one  part  can  safely  be  detached  from  another,  without 
disturbing  the  relation  or  continuity  of  the  whole,  it  should  be 
done.     (Post  v.  Hover,  30  Barb.  313,  per  Hogeboom,  J.) 

But  if  the  principal  trusts  created  by  a  will  be  adjudged  void, 
and  thus  the  main  intent  and  object  of  the  testator  be  defeated,  life 
estates  in  other  lands  given  by  a  codicil  executed  by  the  testator  to 
other  parties  for  whom  provision  was  made  under  the  principal 
trusts,  are  void  also,  and  the  whole  estate  passes  to  the  heirs  at 
law.  (Coster  v.  Lorillard,  14  Wend.  265,  reversing  same  case,  5 
Paige,  172.) 


OF  THE  PROPERTY  DEVISED.  509 

2.  Of  the  property  devised. 

The  words  lands,  tenements  and  hereditaments,  will  pass  every 
species  of  property;  and  have  been  held  to  carry  money  directed  to 
be  laid  out  in  the  purchase  of  land.  This  is  upon  the  princijde 
that  what  is  agreed  to  be  done  is  treated  as  done.  {Cruise's  Dig. 
tit.  38,  Devise,  ch.  10,  §§  62,  63.) 

A  general  devise  of  all  the  testator's  real  estate  will  carry  his  real 
property  of  every  description,  and  every  estate  or  interest  which  he 
has  therein,  either  in  possession,  reversion  or  remainder,  whether 
absolute  or  contingent,  unless  restrained  by  other  words  of  the  will. 
{Pond  V.  Bergh,  10  Page,  149.)  So  a  devise  of  all  the  land  and 
real  estate  which  the  testator  was  to  get  out  of  his  father's  estate, 
canies  a  contingent  interest  given  by  the  father's  will.    {Id.) 

So  a  devise  of  all  the  testator's  interest  in  the  real  estate  which 
might  fall  to  him  from  the  estate  of  his  brother  Philip — Philip 
having  an  absolute  title  to  some,  and  a  determinable  fee  to  other 
lands — was  construed  as  a  devise  of  the  testator's  contingent  title 
to  the  latter  under  a  prior  will.     {Id.) 

The  expression  "  the  farm  I  now  occupy,"  is  often  used  in  devises 
as  expressive  of  the  thing  devised.  But  the  expression  cannot  be 
enlarged  by  parol  evidence  so  as  to  include  other  lands  of  the  tes- 
tator in  the  same  tenure,  under  a  lease  from  the  testator  for  a  term 
of  years.  Where  those  words  are  used  to  designate  the  thing  de- 
scribed as  distinct  from  other  things,  they  cannot  be  rejected  as 
surplusage,  and  be  made  to  embrace  lands  not  in  truth  occupied 
by  the  testator  at  the  time.     {Jackson  v.  Sill,  11  John.  201.) 

An  additional  description  of  the  subject  of  devise  cannot  vitiate, 
but  must  be  rejected,  if  false.  In  Doe  v.  Roe,  (12  Wend.  578,)  the 
devise  was  of  "all  the  land  I  own  which  lies  along  the  Schoharie 
creek,  and  known  by  the  name  of  Ten  Eyck's  patent."  The  farm 
lay  along  the  creek,  but  not  in  Ten  Eyck's  patent,  and  the  devise 
of  it  was  held  good. 

This  is  upon  the  maxim  that  falsa  demonstratio  non  nocet,  or, 
as  it  is  expressed  in  Lord  Bacon's  maxims,  {Peg.  25,)  Veritas  no- 
minis  tollit  errorem  demonstrations .  This  is  applicable  only  to 
cases  where  the  object  of  the  devise  or  the  thing  devised  is  suffi- 
ciently certain  without  the  demonstration  or  description.  In  such 
a  case,  if  the  latter  be  false  it  does  not  vitiate;  but  may  be  rejected 
as  surplusage.     (11  John.  218.) 

In  Brownellx.  Broivnell,  19  Wend.  367,)  the  testator  owTied  the  one 


510  OF  THE  PROPERTY  DEVISED. 

half  of  lot  No.  137,  the  whole  of  which  lot  contained  ahout  one  hun- 
dred and  twenty  acres.  He  devised  *'  tlie  one-half  uf  lot  No.  137, 
containing  sixty  acres  of  land."  It  was  held  tliat  the  whole  of  the 
half  passed  hy  the  devise.  The  words  "  containing  sixty  acres  of 
land"  might  be  rejected  as  a  false  description  of  the  whole  lot;  or 
by  referring  it  to  the  "  half,"  instead  of  ''lot,"  the  last  antecedent 
might,  in  either  case,  be  made  intelligil)le. 

When  the  description  of  the  property  is  insufficient  of  itself  to 
designate  any  particular  class  of  lands  owned  by  the  testator,  resort 
must  sometimes  be  had  to  extrinsic  facts,  in  order  to  apply  the  de- 
vise to  its  subject.  Thus  in  Jlyers  v.  Wheeler,  (22  Wend.  148,) 
the  devise  was  of  "all  my  back  lands;"  parol  evidence  was  held  to 
be  admissible  to  designate  the  premises,  as  by  showing  that  certain 
lands  owned  by  the  testator,  were  called  and  known  by  him  and  his 
neighbors,  by  that  designation. 

Land  may  be  devised  with  reference  to  its  value,  ■without  giving 
a  description  by  metes  and  bounds.  A  devise  of  land  to  the  value 
of  $1500  to  be  taken,  at  an  a})praisal,  out  of  any  except  certain 
land  of  the  testator,  and  to  be  taken  out  of  such  lands  as  the  de- 
visee should  select,  with  that  exception,  was  held  by  the  chancellor 
to  be  a  valid  devise,  and  to  mean  lands  which  shall  be  of  the  speci- 
fied value,  over  and  above  all  charges,  incumbrances  or  claims 
thereon,  which  might  render  it  less  valuable  to  the  owner  thereof. 
(Neilson  v.  Neilson,  6  Paige,   106.) 

We  have  seen  that  the  word  estate  has  reference  technically  to 
the  quantity  of  interest.  But  it  will  jiass  every  kind  of  property 
of  a  real  nature,  unless  restrained  by  other  words.  (2  Preston  on 
Estates,  68-173.)  A  devise  of  the  testator's  estate  generally,  passes 
both  real  and  personal  estate.  (^See  ante,  p.  506.)  When  a  testator 
has  an  estate  of  his  own,  and  holds  another  in  trust  for  others,  a 
general  devise  in  the  residuary  clause  giving  all  his  estate  "  after 
payment  of  his  debts,  legacies  and  funeral  expenses,"  was  held  to 
pass  only  the  estate  in  which  he  had  a  beneficial  interest.  {Roe  v. 
Reade,  8  T.  R.  122,  ^jer  Lord  Kenyon,  Ch.  J.)  With  us,  a  trust 
estate  cannot  be  devised  at  all;  but  the  case  is  important  only  to 
show  how  a  general  devise  may  be  qualified  by  other  words  in 
the  will. 

The  words  "all  I  am  worth,"  without  any  other  words  to  control 
them,  will  pass  real  as  well  as  personal  property.  So  a  devise  of 
"  all  that  I  possess  in  doors  and  out  doors,"  is  sufficient  to  pass  real 


OF  THE  PERSON  OF  THE  DEVISEE.  511 

estate.  (Pitman  v.  Stevens,  15  East,  505.  Thomas  v.  Fhelps  4 
MusseU,  348.)  ' 

The  word  "  legacy"  may  be  applied  to  a  real  estate,  if  the  con- 
tents of  the  will  show  that  such  was  the  intention  of  the  testator. 
(Hardacre  v.  Nash,  5  T.  B.  716.)  And  the  word  "  devise"  may  be 
used  in  reference  to  a  bequest  of  personal  property,  without  injury 
to  the  will;  the  meaning  being  in  all  respects  plain.  {Myers  v. 
Eddy,  supra.)  And  real  property  will  pass  under  the  description 
of  personal,  if  it  is  manifest  that  such  was  the  intention  of  the  tes- 
tator.    (Cruise's  Dig.  tit.  38,  Devise,  ch.  10,  §  78.) 

The  draftsman  of  a  will  should  avoid  all  disputes  of  this  nature, 
by  using  the  proper  technical  terms  ''give  and  devise,"  when  the 
object  is  to  pass  the  title  to  freehold  interest,  and  ''give  and  be- 
queath," when  a  personal  legacy  only  is  intended. 

3.  Of  the  person  of  the  devisee. 

On  this  subject,  it  may  be  remarked,  that  any  words  which  are 
sufficient  to  denote  the  person  intended  by  the  testator,  and  to  dis- 
tinguish him  from  all  others,  is  a  sufficient  description. 

A  reference  to  a  few  of  the  cases  will  be  enough  to  illustrate  the 
rule. 

In  Gardner  v.  Beyer,  (2  Paige,  11,)  it  was  said  by  the  chanceUor, 
that  if  there  are  no  persons  answering  the  description  of  the  lega- 
tees, in  the  legal  sense  of  the  term  used  in  describing  them,  it  is 
allowable  to  prove  the  situation  of  the  testator's  family,  to  enable 
the  court  to  ascertain  the  legatees  intended.  It  was  said  also,  in 
the  same  case,  that  a  devise  to  children,  without  other  descrii^tion 
as  a  general  rule,  means  legitimate  children;  and  if  the  testator  has 
such  children,  parol  evidence  cannot  be  received  to  show  that  a  dif- 
ferent class  of  persons  is  intended;  but  he,  having  illegitimate  chil- 
dren, proof  of  circumstances  dehors  the  will  was  held  admissible  to 
show  that  they  were  the  children  intended. 

In  Bijers  v.  Wheeler,  (22  Wend.  150,)  Cowen,  J.  said,  a  nick- 
name, or  a  name  by  reputation,  given  by  the  testator,  and  current 
in  his  family  and  neighborhood,  is  sufficient  to  designate  the 
devisee. 

A  mere  misdescription  of  the  legatee  does  not  render  it  void   un-    ' 
less  the  ambiguity  is  such  as  to.  render  it  impossible  to  ascertain 
from  the  will  itself,  or  by  evidence  dehors  the  wiU,  who  was  the  ml 
tended  legatee.     (Smith  v.  Sjnith,    4  Paige,  271.)     That  case  re- 


512  OF  THE  PERSON  OF  THE  DEVISEE. 

lated,  it  is  true,  to  personal  property;  but  the  principle  is  the  same 
in  a  devise  of  the  realty. 

The  word  children  does  not  ordinarily  include  grandchildren,  or 
any  others  than  the  immediate  descendants  in  the  first  degree,  of 
the  person  named  as  the  ancestor.  But  it  may  include  them  when 
there  were  no  children  in  existence  at  the  time  of  the  making  of 
the  will;  or  when  there  could  not  be  any  children  at  the  time,  or 
in  the  event  contemplated  by  the  testator;  or  when  the  testator  has 
clearly  shown  by  the  use  of  other  words,  that  he  used  the  word 
children  as  synonymous  with  descendants,  or  issue,  or  to  designate 
or  include  illegitimate  oflfspring,  grandchildren,  or  step-grandchil- 
dren. {3Ioiuatt  V.  Caroiv,  7  Paige,  328.)  When  there  is  nothing 
in  the  will  to  show  that  the  testator  intended  to  use  the  word  chil- 
dren in  a  different  sense,  it  will  not  be  held  to  include  ilk'gitimate 
offspring,  step-children,  children  by  marriage  only,  grandchildren, 
or  more  remote  descendants.  {Cramer  v.  Pinchiey,  3  Barb.  Ch. 
475.)  In  the  case  last  mentioned  several  other  questions  arose 
with  respect  to  the  persons  intended  by  the  will.  And  it  was  held 
that  the  words  nephews  and  nieces,  in  their  primary  and  ordinary 
sense,  mean  the  immediate  descendants  of  the  brothers  and  sisters 
of  the  person  named;  and  do  not  include  grand-nephews  and  grand- 
nieces,  or  more  remote  descendants.  (Falkner  v.  Butler,  Ambler , 
514.) 

But  the  peculiar  circumstances  of  the  case,  and  the  structure  of 
the  will,  may  show  that  the  testator  used  the  terms  nephews  and 
nieces  in  an  enlarged  sense,  so  as  to  include  all  the  grand-nephews 
and  nieces  whose  parents  were  dead.  In  the  same  case  the  testa- 
tor, by  one  clause  of  his  wiU,  gave  a  legacy  unto  each  of  his  neph- 
ews and  nieces  except  J.  C,  who  w^as  not  a  nephew,  but  one  of  the 
children  of  a  deceased  nephew;  and  by  another  clause  he  gave  to 
the  children  of  his  nephew  J.  C.  $500 — it  was  held  that  the  broth- 
ers and  sisters  of  J.  C,  and  other  grand-nephews  and  nieces  whose 
ancestors  were  dead  at  the  time  of  the  making  of  the  will,  were  en- 
titled to  the  legacies.  It  was  also  held  that  parents  and  children 
could  not  both  take,  under  the  description  of  the  testator's  nephews 
and  nieces,  but  only  the  parents  who  were  living,  and  those  grand- 
nephews  and  nieces  whose  parents  were  dead.  (Cramer  v.  Pinck- 
ney,  supra;  and  see  Hone  v.  Van  Schaick,  3  Barb.  Ch.  488,  and 
S.  C  3  Comst.  538.) 

As  no  person  can  in  strictness  be  said  to  be  the  heir  of  a  person 


'  OF  THE  PERSON  OF  THE  DEVISEE.  513 

now  living,  it  is  necessary  that  if  a  devise  be  given  to  a  person  by 
that  designation,  it  must  be  shown  by  the  will  that  heir  apparent 
was  intended,  or  it  will  be  void.  If  the  devise  be  to  the  heirs  of 
the  body  of  B.  now  living,  it  has  been  held  to  be  a  good  description 
of  the  person.  It  shows  that  heir  apparent  is  the  person  meant. 
But  a  devise  to  the  heirs  of  B.,  who  was  in  truth  living,  but  that 
fact  not  stated  in  the  will,  is  void.     {Heard  v.  Horton,  1  JDen.  165.) 

A  limitation  by  means  of  an  executory  devise,  may  be  made  to 
any  number  of  persons  for  life  successively,  if  in  esse  at  the  death 
of  the  testator, — to  infants  in  ventre  sa  mere,  and  to  persons  un- 
born. -  Such  was  formerly  the  law,  and  is  still,  except  that  by  our 
revised  statutes  (1  R.  S.  723,  §§  15-17)  successive  estates  for  life 
shall  not  be  limited  to  more  than  two  persons  in  being  at  the  crea- 
tion thereof;  and  if  limited  to  more  than  two,  all  the  life  estates 
subsequent  to  the  two  first  entitled,  shall  be  void.  It  was  at  one 
time  doubted  whether  a  limitation  for  life  to  an  unborn  person  was 
good ;  but  it  is  now  well  settled  that  it  is,  and  also  that  an  estate 
limited  to  the  issue  of  such  unborn  person  to  take  as  purchasers, 
would  be  void,  being  a  possibility  upon  a  possibility,  which  the  law 
will  not  admit.  (Jackson  v.  Brown,  13  Wend.  441,  442.  Steivart 
V.  Nicoll,  3  John.  Cas.  18.  Chapman  v.  Brown,  3  Burr.  1635,  ^^er 
Wilmot,  J.) 

The  word  issue  is  a  sufficient  designation  of  a  person  in  a  devise. 
It  comprises  children  and  grandchildren.  {Merest  v.  James,  1 
Brod.  &  Bing.  484.     Kingsland  v.  Rapelye,  3  Edw.  1.) 

A  devise  to  the  testator's  wife  during  her  natural  life;  and  at 
her  decease  to  be  equally  divided  amongst  the  "  relations^n  his 
side,"  has  been  held  good,  and  to  belong  to  those  persons  to  whom 
the  personal  estate  of  the  testator  would  go  under  the  statute  of 
distributions.  {Doe  v.  Over,  1  Taunt.  263.)  Unless  the  word 
"  relations"  was  thus  restricted,  it  would  embrace  an  almost  bound- 
less range  of  subjects;  for  it  would  comprehend  every  degree  of 
consanguinity  however  remote.  {See  2  Jarman  on  Wills,  25-68, 
various  cases  collected.) 

Will.— 33 


Jgl^  DEVISES  VOID  FOR  UNCERTAINTY. 


Section  III, 


Of  Devises   Void  for  Uncertainty,  and  of  the  Remedy  when  the 
Will  is  of  Doubtful  Construction. 

From  what  has  been  said  in  the  foregoing  section  it  would  seem 
that  a  devise  will  be  void,  if  there  be  so  much  uncertainty,  either 
in  the  subject  of  it,  or  of  the  person  intended,  as  to  be  incapable  of 
any  clear  meaning.     {Mason  v.  Robinson,  2  Sim.  d  Stu.  295.) 

Although,  in  the  construction  of  wills,  great  indulgence  is  shown 
to  the  ignorance,  unskillfulness  and  negligence  of  the  testator;  and 
no  testamentary  disposition  of  property  will  be  rendered  invalid  by 
a  failure  to  comply  with  mere  technical  rules  and  forms  of  expres- 
sion, or  by  gi-ammatical  or  orthographical  errors,  nor  by  a  confused 
collocation  of  sentences,  if  the  intention  of  the  testator  can  be  dis- 
covered from  the  whole  will.  But  if  this  cannot  be  ascertained,  the 
intended  disposition  will  fail.  Conjecture  is  not  permitted  to  sup- 
ply what  the  testator  has  failed  to  indicate.  The  law  has  provided 
a  definite  successor  to  the  property  of  its  dying  owner,  in  the  ab- 
sence of  a  legal  disposition  of  it.  The  law  must  therefore  take  its 
course,  if  the  testator  from  any  cause  fails  to  make  a  disposition  of 
it  in  language  that  can  be  understood.  (1  Jarman  on  Wills,  322, 
Perkins'  cd.) 

There  are,  in  modern  times,  fewer  instances  of  devises  void  for 
uncertainty  than  in  an  earlier  state  of  the  law.  This  may  be  owing 
to  a  better  understanding  of  the  rules  of  construction,  which  have 
given  a  determinate  meaning  to  many  words  and  phrases  once  con- 
sidered vague  and  insensible,  or  to  greater  skill  in  the  courts  in  the 
application  of  these  rules;  or  to  both  those  causes. 

A  few  examples  of  each  kind  of  defects  will  be  given.  In  the 
early  case  of  Bowman  v.  Millbanke,  (1  Lev.  130,)  the  words  of  the 
will  were,  "  I  give  all  to  my  mother,  all  to  my  mother."  The  ques- 
tion was  whether  this  was  sufficient  to  carry  to  the  mother  the  tes- 
tator's real  estate.  Here  it  was  uncertain  to  what  the  word  "all" 
referred.  It  might  mean  all  his  real  property;  it  might  be  all  his 
personal  estate;  it  might  be  all  his  estate  of  whatsoever  kind ;  or  it 
might  be  all  of  a  particular  portion  of  his  estate.  It  was  adjudged 
by  the  court  to  be  void  absolutely  for  this  uncertainty. 

In  the  later  case  before  Sir  Thomas  Plumer,  M.  R.  {Mohun  v. 


WHEN  VOID  FOR  TJNCERTAmTY,  515 

MoJiun,  (1  Swans.  201,)  the  language  of  the  will  was  :  "  I  leave  and 
bequeath  to  all  my  grandchildren,  and  share  and  share  alike." 
Here  no  property  was  mentioned  as  the  subject  of  the  gift.  It  did 
not  appear  lohat  he  left  to  his  grandchildren.  It  was  contended 
that  the  difficulty  would  be  removed  by  transposing  the  word  "  all," 
so  that  it  should  follow  the  word  bequeath.  But  that,  according  to 
the  preceding  case,  would  leave  it  still  uncertain.  Besides,  it  was 
not  a  case  in  which  the  transposition  of  words  is  allowable.  These 
words  as  they  are  situated  were  not  inconsistent  with  the  context. 
The  word  "  all,"  though  inoperative  where  the  testator  placed  it, 
was  not  repugnant.  The  court  held  that  there  was  an  uncertainty, 
both  in  the  subject  and  object  of  the  bequest,  and  that  it  was  there- 
fore void. 

In  Jubher  v.  Jubber,  (9  Sim.  504,)  the  testator,  after  making  his 
will  added  a  codicil,  which  was  as  follows :  "  I  request  a  handsome 
gratuity  to  be  given  to  each  of  my  executors."  Here  no  definite 
sum  is  bequeathed,  nor  is  it  said  by  whom  the  amount  shall  be 
ascertained.  The  will  contained  a  provision  that  if  any  dispute 
should  occur  it  should  be  settled  by  arbitration,  which  should  be 
final  without  appeal  and  without  reference  to  the  law.  It  was  held 
that  this  legacy  v.'as  absolutely  void  for  uncertainty.  And  the  vice 
chancellor  (Shadwell)  said  he  should  not  do  what  Sir  Joseph  Jekyl 
did  in  Feck  v.  Hahey,  as  he  conceived  that  he  had  no  power  so  to  do. 

In  Peck  V.  Ealsey,  (2  P.  Wms.  387,)  the  testatrix  bequeathed 
to  one  of  her  grandchildren  by  name,  "  some  of  her  best  linen." 
This  was  held  to  be  void  for  uncertainty;  but  still  the  master  of 
the  rolls.  Sir  Joseph  Jekyl,  recommended  to  the  residuary  legatee 
to  give  some  of  the  best  linen  of  the  testatrix  to  the  legatee. 
Whether  the  recommendation  was  followed  does  not  appear;  but  it 
is  quite  clear  the  court  had  no  power  to  enforce  it.  In  both  the 
above  cases  the  gift  was  entirely  indefinite,  as  to  quantity. 

The  indefiniteness  of  the  gift  constitutes  no  objection,  if  it  be  of 
the  residue  after  satisfying  prev-ious  legacies.  {Gibbs  v.  Tart,  8  Sim. 
132.     Surman  v.  Surman,  5  Madd.  123.) 

The  same  principles  apply  to  the  object  of  testamentary  gifts. 
It  is  enough  that  the  devisee  or  legatee  is  so  designated  as  to  be 
distinguished  from  every  other  person,  and  the  inaptitude  of  some 
of  the  particulars  introduced  into  the  testator's  description  is  im- 
material; and  this  whether  the  object  of  the  gift  be  a  natural  or  an 


r)16  WHEN  VOID  FOR  UNCEIJTAINTy. 

artificial  person.  A  mistake  in  the  name  of  the,  devisee,  or  an  erro- 
neous description  of  him,  will  not  vitiate,  if  from  other  parts  of  the 
will,  or  the  surrounding  facts,  there  is  no  reasonable  doubt  as  to  the 
person  intended.  But  when  the  entire  name  of  the  devisee  is  left 
blank,  no  parol  evidence  is  admissible  to  show  who  the  testator  in- 
tended. {Baylis  v.  The  Att'y  Gen.  2  Atk.  239.)  In  Clayton  v. 
Lord  Nugent,  (13  M.  d  Wels.  200,)  the  case  was  this :  The  testa- 
tor wrote  his  will  on  various  pages  of  a  book  at  difi'erent  times,  part 
of  it  being  executed  and  attested  in  1820,  and  the  remainder  in 
1827.     No  devisees  were  mentioned  by  name;  but  the  testator's 

real  estates  were  devised,  "  first  to  K.,  then  to ,  then  to  L., 

then  to  M.,"  &c.  On  a  slip  of  paper,  pasted  into  the  book,  and 
forming  part  of  the  will  at  the  time  of  the  attestation,  in  1820,  the 
testator  stated  that  a  "  key  and  index  to  the  letter,  initials,  &c.  was 
in  a  writing  case  in  the  drawer  of  his  ^vl•iting  desk,  on  a  card." 
The  testator  died  on  the  11th  of  December,  1828,  and  on  that  day 
a  card,  in  his  handwriting,  and  signed  by  him,  was  found  in  the 
above  writing  desk,  dated  January  30,  1828,  as  follows:  "K.  sig- 
nifies Eleanor  Mary  East.  L.  signifies  Gilbert  East  Clayton.  M. 
signifies  second  son  of  William  Eobert  Clayton.  N.  signifies  eldest 
son  of  Richard  Rice  Clayton,"  &c.  Two  years  before  the  testator's 
death,  a  card  with  wiiting  on  it  had  been  seen  by  a  person  lying  be- 
fore the  testator,  together  with  the  book  containing  the  will,  which 
appeared  to  be  similar  to  the  card  and  wTiting  thereon  found  after 
his  death.  It  was  held  that  the  card  found  after  the  testator's 
death  was  not  admissible  in  evidence,  as  a  declaration  of  the  testa- 
tor, to  show  who  were  the  persons  meant  to  be  designated  in  his 
will  by  the  letters  K.  L.  M.  &c. 

In  Miller  v.  Travis,  (8  Bing.  254,)  it  was  said  by  Tindall,  Ch. 
J.  that  it  was  a  well  established  principle  that  where  a  complete 
blank  is  left  for  the  name  of  the  legatee  or  devisee,  no  parol  evi- 
dence, however  strong,  will  be  allowed  to  fiU  it  up;  as  intended  by 
the  testator. 

Where,  however,  the  blank  was  left  for  the  christian  name  only, 
parol  evidence  has  been  admitted  to  prove  the  individual  intended. 
(Price  V.  Page,  4  Ves.  680.)  So  in  the  case  of  a  legacy  to  Mrs.  Gr., 
it  was  referred  by  Lord  Loughborough  to  the  master  to  receive  ev- 
idence to  show  the  person  intended.  (Abbot  v.  Massie,  3  id.  148.) 
From  the  remarks  of  the  judge  who  delivered  the  opinion  of  the 
court  in  Clayton  v.  Lord  Nugent,  (supra,)  it  would  seem  that  the 


WHEN  INTENTION  IS  EXPLAINABLE.  517 

foregoing  cases  went  iij)on  the  ground  that  the  testator  was  in  the 
habit  of  calling  the  claimant  in  the  one  case  Mrs.  G.,  and  the  claim- 
ant in  the  other  by  his  surname.  When  a  testator  has  habitually- 
called  certain  persons  or  things  by  peculiar  names,  by  which  they 
were  not  commonly  known;  if  those  names  occur  in  his  will,  evi- 
dence of  such  habit  seems  receivable  to  explain  the  meaning  of  the 
wall,  in  like  manner  as  if  his  "oall  had  been  Avritten  in  cipher  or  in 
a  foreign  language.  The  habits  of  tRe  testator,  in  these  particu- 
lars, must  be  receivable  as  evidence  to  explain  the  meaning  of  his 
will.     {Per  Lord  Ahincjcr  in  Doe  v.  Hiscocks,  5  M.  &  W.  368.) 

The  case  of  Parsons  v.  Parsons,  (1  Ves.  jun.  266,)  affords  an- 
other example  of  a  mistake  in  the  name  of  the  legatee,  which  did 
not  defeat  the  object  of  the  testator.  The  testator  by  his  will  gave 
an  annuity  to  his  brother  Edward  Parsons  for  life,  and,  after  his 
decease,  the  same  to  go  equally  among  his  [B.  P.'s]  children  "  by  his 
present  wife;"  and  at  the  date  of  the  will,  the  testator  had  no 
brother  except  one  named  Samuel  who  had  a  wife  and  children; 
but  four  or  five  years  before,  he  had  a  brother  named  Edward,  who, 
as  well  as  his  wife,  was  then  dead;  which  fact  was  known  to  the 
testator,  who  by  the  same  will  gave  legacies  to  his  children.  The 
testator  had  been  in  the  habit  of  calling  his  brother  Samuel,  Ed- 
ward and  Ned.  The  lord  chancellor,  without  argument,  held  that 
the  children  of  Samuel  were  entitled. 

In  Thomas  v.  Stevens,  (4  John.  Ch.  607,)  a  legacy  to  Cornelia 
Thompson  was  held,  by  Chancellor  Kent,  to  be  a  good  bequest  to 
Caroline  Thomas,  it  being  admitted  by  the  executors  and  by  proof 
aliunde  that  she  was  the  person  intended. 

On  the  same  principle,  the  case  of  Connolly  v.  Pardon,  (1  Paige, 
291,)  was  decided.  In  that  case  the  testator,  in  a  codicil,  bequeath- 
ed as  follows :  "  To  my  nephew  Cormar  Connolly,  the  son  of  my 
brother  Cormar  Connolly,  the  sum  of  five  hundred  dollars,  for  his 
ecclesiastical  education,  w^hich  sum  is  to  be  taken  from  what  I  have 
bequeathed  to  my  brother  Cormar,  and  to  my  sisters  Mary  and 
Ann."  The  testator  never  had  a  brother  named  Cormar,  but  he 
had  a  nephew  Cormar,  son  of  his  brother  James,  the  complainant, 
who,  at  the  time  of  making  the  will,  was  pursuing  classical  studies 
in  Ireland,  with  a  view  to  an  ecclesiastical  education;  and  he  was 
the  only  nephew  of  that  name.  The  proper  parties  were  before  the 
court,  and  the  bill  was  taken  as  confessed.     The  chancellor,  after 


518  JURISDICTION  OF  COURTS  OF  EQUITY. 

considering  the  exi)lanatory  circumstances  set  up  in  tlie  "bill,  held 
that  the  complainant  was  the  object  of  the  testator's  bounty. 

If  the  legatee  can  be  ascertained,  a  legacy  will  not  be  permitted 
to  fail  on  account  of  a  misdescription  of  the  legatee.  {Banks  v. 
Fhelan,  4  Barb.  80.) 

The  same  principles  apply  when  the  object  of  the  testator's  boun- 
ty is  a  corporation  or  a  voluntary  association.  Thus,  in  the  last 
cited  case,  a  legacy  in  trust  for  "  the  ladies  of  the  Ursuline  order, 
residing  in  Charleston,"  was  upheld,  while  the  legatee  intended 
was,  "  The  Ladies'  Ursuline  community  of  the  city  of  Charleston." 
And  it  was  said  that  a  bequest  to  a  religious  society,  as  such,  is 
valid  as  a  gift  for  pious  and  charitable  uses,  where  there  is  no  doubt 
or  uncertainty  as  to  who  was  the  legatee  intended,  although  the 
society  be  not  incorporated. 

Some  of  the  cases  referred  to  are  of  personal  legacies,  but  the 
principle,  so  far  as  relates  to  the  description  of  the  person  intended, 
is  the  same,  whether  it  be  a  bequest  of  personal  property,  or  a  de- 
vise of  real  estate. 

It  sometimes  happens  that  the  testator  has  expressed  his  inten- 
tion so  ambiguously  as  to  render  it  necessary  to  come  into  a  court 
of  equity  for  a  construction  of  the  will,  or  to  remove  the  difficulty, 
and  to  obtain  the  direction  of  the  court  in  relation  to  the  whole,  or 
some  part  of  it.  In  cases  of  this  kind,  the  cost  of  the  litigation  is 
within  the  discretion  of  the  court,  and  is  usually  borne  by  the 
estate.  {Smith  v.  Smith,  4  Paige,  271.  Rogers  v.  Ross,  4  John. 
Gh.  608.     King  v.  Strong,  9  Paige,  94.) 

Courts  of  equity  obtain  their  jurisdiction  over  wills,  by  virtue  of 
their  general  jurisdiction  over  trusts.  The  jurisdiction  is  not  con- 
fined to  wills  of  personal  property,  but  extends  to  all  kinds  of  wills, 
whether  they  relate  to  real  or  personal  property,  or  to  both.  Some- 
times the  object  is  to  remove  an  uncertainty,  either  as  to  the  person 
intended  or  the  subject  of  the  will.  Some  of  these  cases  have  been 
adverted  to  in  this  section  already.  Sometimes  the  bill  is  filed  to 
remove  an  ambiguity;  sometimes  to  enforce  a  charge,  or  to  comi^el 
the  execution  of  a  trust,  in  favor  of  legatees  or  creditors ;  and  some- 
times to  enforce  contribution  among  the  beneficiaries  to  remove  a 
burden  common  to  all.  This  branch  of  the  subject  belongs  more 
appropriately  to  works  on  equity  jurisprudence,  to  which  the  reader 
is  referred,     {See  Willard's  Eq.  Jur.  483  et  seq.) 


WORDS  TO  CREATE  AN  ESTATE.  519 


Section  IV. 

By  whai  Words  particular  Estates  and  Conditions  arc  Created^ 
and  by  ivhat  Words  Lands  are  Charged. 

"We  have  mentioued  in  the  second  section  of  this  chapter,  the 
manner  in  which  a  devise  is  created,  and  have  brought  to  the  no- 
tice of  the  reader  some  of  the  rules  of  construction  with  reference 
to  the  quantity  of  interest,  the  -property  de\dsed,  and  the  person  of 
the  devisee.  It  is  proposed  in  this  section  to  point  out  by  what 
words  particular  estates,  not  before  mentioned,  are  created. 

By  the  common  law,  if  a  man  devises  to  two  or  more  persons  an 
estate  in  lands,  to  them  and  their  heirs  and  assigns  forever,  the  de- 
visees take  an  estate  in  joint  tenancy.  It  was  not  necessary  to  spe- 
cify the  incident  of  survivorship,  for  that  was  inseparable  from  the 
nature  of  the  estate.  It  has  been  shown  in  a  previous  part  of  this 
work,  that  the  revised  statutes  have  changed  this  rule  of  the  com- 
mon law,  and  made  the  estate  in  the  case  supposed  a  tenancy  in 
common.  If  it  be  desired  by  the  testator  to  give  an  estate  in  joint 
tenancy,  he  must  expressly  declare  that  intention  in  the  will  itself. 
It  is  usual  in  such  cases  for  the  testator  to  use  language  like  this, 
viz:  I  give  and  devise  to  A.  B.  and  C.  D.,  and  their  heirs,  such  a 
farm,  describing  it,  to  hold  as  joint  tenants  and  not  as  tenants  in 
common.  If  it  be  simply  devised  to  them  and  their  heirs,  without 
any  words  of  qualification,  they  will  take  the  estate  as  tenants  in 
common,  and  not  as  joint  tenants.  The  only  exception  to  this 
rule,  imder  our  statute,  is  the  case  of  estates  vested  in  executors 
or  trustees,  who  invariably  hold  as  joint  tenants,  with  all  the  inci- 
dents of  survivorship.     (1  R.  S.  727,  §  44.) 

Under  the  New  York  statutes,  if  the  devise  be  in  fee  tail,  as  at 
common  law;  as  when  the  testator  devises  the  estate  to  A.  B.  and 
the  heirs  of  his  body,  or  to  A.  B.  and  his  issues;  or  when,  by  any 
words,  he  manifests  an  intention  to  restrain  the  estate  to  the  devi- 
see and  the  issue  of  his  body;  the  devisee  will  take  the  fee  simple 
by  force  of  the  statute  abolishing  entails,  and  converting  them  into 
estates  in  fee  simple.  {Id.  722,  revising  the  statidc  of  1786.)  It 
is  immaterial,  therefore,  in  determining  the  nature  of  the  estate 
which  a  party  derives  by  devise,  whether  the  estate  be  such  as  at 


520  CONDITION.    LnilTATION. 

common  laAv  was  a  fee  tail  or  a  fee  simple.     In  either  case,  by  force 
of  the  statute,  the  estate  is  a  foe  simple. 

There  are  several  material  distinctions  between  a  will  ami  a  deed. 
A  deed  operates  from  the  time  of  its  execution;  a  will  only  from 
the  death  of  the  testator.  In  the  meantime  it  is  said  to  be  ambu- 
latory. A  will  is  revocable  in  its  nature;  but  a  deed  is  not  revo- 
cable in  its  nature.  To  defeat  its  operation  there  must  be  a  condi- 
tion; or  in  case  of  a  conveyance  to  uses,  or  upon  trust,  a  power  of 
revocation.  In  regard  to  deeds,  whenever  a  condition  is  annexed  to 
the  same,  the  title  derived  under  the  conveyance  must  be  consider- 
ed as  defeasible  so  long  as  the  condition  remains  in  force.  A  will 
may  be  revoked,  as  we  have  seen,  by  a  variety  of  means;  and  again 
be  republished  and  made  operative.     (3  Prest.  on  Ab.  181.) 

With  respect  to  the  words  that  are  necessaiy  to  make  a  devise 
conditional,  it  is  laid  down  by  Lord  Coke,  that  many  words  in  a 
will  make  a  condition  in  law,  that  make  no  condition  in  a  deed;  as 
a  devise  of  lands  to  an  executor  ad  vendendum.  So  if  lands  be  de- 
vised to  one  ad  solvcndum,  £20  to  J.  L.  or  jmying  £20  to  I.  S., 
tliis  amounts  to  a  condition.  (1  Co.  Lift.  23t)  h.)  Any  words 
which  in  a  deed  create  a  condition,  will  have  the  same  operation  in 
a  devise.  Conditions  are  express  or  implied;  precedent  or  subse- 
quent; and  whether  they  be  one  or  the  other  depends  upon  the 
intention  of  the  parties  as  expressed  in  the  instrument.  {NicoU  v. 
The  New  York  and  Brie  Bail  Road,  2  Kern.  121.  Ante,  Fart  1, 
chapter  4.) 

There  is  distinction  between  a  condition  and  a  limitation.  A 
condition  is  something  inserted  for  the  benefit  of  the  grantor,  giv- 
ing him  the  power,  on  default  of  performance,  to  destroy  the  estate, 
if  he  will,  and  revest  the  estate  in  himself  or  his  heirs.  As  the  law 
does  not  presume  forfeitures,  it  requires  some  express  act  of  the 
grantor,  as  evidence  of  his  intent  to  reclaim  the  estate,  viz:  an  en- 
try.     (1  Cruise's  Dig.  Greenl.  ed.  tit.  13,  ch.  2,  §  64,  note  1.) 

A  limitation  determines  the  estate  ij^^o  facto,  without  entry.  It 
is  conclusive  of  the  time  of  continuance,  and  of  the  extent  of  tho 
estate  granted;  and  beyond  which  it  is  declared  at  its  creation  not 
to  be  intended  to  continue. 

Conditions  render  the  estate  voidable  hy  entry.  Limitations 
render  it  void,  ivithout  entry. 

If,  upon  failure  of  that  upon  which  the  estate  is  made  to  depend, 
no  matter  how  expressed  in  the  deed,  the  land  is  to  go  to  a  third 


CHARGING  REAL  ESTATE.  521 

j[)er8on;  this  is  a  limitation  over,  and  not  a  condition.  For  if  a 
condition,  an  entry  hy  the  grantor  would  be  necessary;  and  he 
mi^ht  defeat  the  limitation  by  neglecting  to  enter. 

A  limitation  is  imperative,  and  is  determined  by  the  rules  of 
law. 

A  condition  not  only  depends  on  the  option  of  the  grantor,  but 
is  also  controlled  by  equity,  if  the  grantor  attempts  to  make  an  in- 
equitable use  of  it.  The  performance  of  a  conditions  excused  by 
the  act  of  God  or  of  the  law,  or  of  the  party  for  whose  benefit  it 
was  made. 

A  limitation  determines  the  estate  absolutely,  whatever  be  its  na- 
ture. {Id.noteo/Frof.Greenl.  I  Frest.  on  Fst.  40-50.  2  J3L 
Com.  155,  15G.     4  Kent's  Com.  126-128.) 

With  regard  to  the  charging  the  real  estate  of  the  testator  with 
the  payment  of  debts  or  legacies,  or  both,  the  most  obvious  mode 
is  to  express  the  intention,  in  direct  terms.  The  testator  may,  if 
he  pleases,  make  his  real  estate  the  primary  fund  for  the  payment 
of  debts  and  legacies,  or  only  the  auxiliary  fund  for  that  purpose. 
He  may  bequeath  and  devise  all  his  estate,  real  and  personal,  to  his 
executors  in  trust  to  pay  the  debts  and  legacies;  or  he  may  simply 
authorize  and  empower  his  executors  to  sell  his  real  estate,  or  such 
part  thereof  as  may  be  necessary  for  those  purposes.  In  the  first 
case,  the  executors  take  the  fee,  and  in  the  second  a  power  of  sale; 
and  in  both  they  become  trustees  for  the  purposes  of  the  will,  and 
th(^y  may  be  compelled  to  the  execution  of  the  trust  by  a  court  of 
equity. 

If  the  will  is  silent  on  the  subject,  the  personal  estate  constitutes 
th(3  primary  fund  for  the  payment  of  the  debts,  and  the  only  fund 
for  the  payment  of  legacies.  (Lupton  v.  Lupton,  2  John.  Ch.  614, 
624.)  In  this  state  the  real  estate  can  be  reached  for  the  payment 
of  debts,  in  the  hands  of  executors  or  administrators,  in  all  cases, 
whether  they  be  so  charged  by  the  testator  by  his  will  or  not.  If 
so  charged,  the  courts  have  power  to  enforce  the  execution  of  it; 
and  if  not  charged,  provision  is  made  through  the  intervention  of 
tlu;  surrogate's  court,  for  making  the  real  estate  available  for  the 
payment  of  debts.  (2  B.  S.  100,  §  1,  as  amended  hy  act  of  1837. 
Willard  on  ExWs,  306  et  seq.) 

Wlien  the  charge  is  made  in  direct  terms,  there  is  no  room  for 
dispute  or  construction,  and  the  cases  need  not  be  examined  in  this 


522  IMPLIED  CHARGE. 

plcace.  It  is  only  in  cases  where  the  realty  is  indirectly  charged  that 
there  will,  in  general,  be  any  difficulty. 

Whether  a  general  direction  in  a  will  by  a  testator  that  his  debts 
shall  be  paid,  charges  the  real  estate  with  the  payment,  has  been 
much  agitated.  The  weight  of  authority  is  that  such  direction 
alone  is  not  sufficient  to  charge  the  real  estate.  It  means,  merely, 
that  his  debts  shall  be  paid  out  of  the  primary  fund  for  their  pay- 
ment. {Freeman's  Ch.  Cas.  192.  Lupton  v.  Lupton,  supra. 
Eyles  V.  Cary,  1  Vern.  457.) 

A  charge  is  implied  when  it  appears,  from  the  whole  will,  that 
it  was  clearly  the  testator's  intent  that  the  charge  should  be  im- 
posed, and  in  no  other  case.  {Per  Johnson.  J.  in  Reynolds  v.  Rey- 
nolds, 16  N.  Y.  Rep.  262.  Harris  v.  Fly,  7  Faige,  421.  War- 
ren V.  Davies,  2  31.  &  K.  49.) 

The  usual  residuary  clause  in  a  wall  does  not  of  itself  imply  that 
the  real  estate  is  to  be  charged  with  either  debts  or  legacies.  Nor 
does  the  blending  of  the  real  and  personal  estate  in  one  devise  in 
the  same  clause  of  the  will.  This  subject  was  well  considered  by 
the  court  of  appeals  in  New  York,  in  Reynolds  v.  Reynolds,  (2 
Smith,  259.)  The  cases  are  reviewed  by  Bowen,  J.,  and  the  result 
seems  to  be  that  when  a  testator  directs  his  debts  and  legacies  to 
be  first  paid,  and  then  devises  real  estate;  or  when  he  devises  the 
remainder  of  his  estate,  real  and  personal,  after  payment  of  debts 
and  legacies;  or  devises  real  estate  after  payment  of  debts  and  lega- 
cies, the  real  estate  is  held  to  be  charged.     {Neivman  v.  JohnsoUj 

1  Vern.  45.     Harris  v.  Ingledeio,  3  P.  Wms.  91.     Trott  v.  Vernon, 

2  Vern.  708.  Kentish  v.  Kentish,  3  Br.  Ch.  Cas.  257.  Shalcross 
V.  Finden,  3  Ves.  739.  Tomp)hins  v.  Tompkins,  Free,  in  Ch.  397. 
Williams  v.  Chitty,  3  Ves.  545.  Hassel  v.  Hassel,  2  Dick,  527. 
Brudenell  v.  Boughton,  2  Atk.  268.  Bench  v.  Biles,  4  Mad.  187.) 
So,  too,  where  the  devisee  of  real  estate  is  appointed  executor,  and 
is  expressly  directed  to  pay  debts  and  legacies,  the  charge  will  be 
created.  {Henvell  v.  Whitaker,  3  Russ.  343.  Hoe  v.  Fratt,  6 
Add.  &  Ell.  180.  Alcock  v.  Sparhaivk,  2  Vern.  228.  Dover  v. 
Gregory,  10  Sim.  393.) 

So  where  a  testator  gives  several  legacies,  and  then,  without  cre- 
ating any  express  trust  for  their  payment,  makes  a  general  residu- 
ary disposition  of  the  whole  estate,  blending  the  realty  and  person- 
alty together  in  one  fund,  the  real  estate  will  be  charged  with  the 
legacies;  for  in  such  a  case  the  "  residue"  can  only  mean,  what  re- 


EXECUTORY  DEVISES.  523 

nicains  after  satisfying  the  pre^dous  gifts.  {Lewis  v.  Darling,  16 
Eoio.  10.  Hill  on  Trustees,  508.  Brudenell  v.  Boughfon,  supra. 
Bench  v.  Biles,  supra)  But  in  these  cases  the  residuary  legatee 
was  the  executor,  and  the  gifts  to  him  did  not  become  effectual  im- 
til  all  antecedent  dispositions  of  the  estate  werG Jlrst  satisfied.  But 
if  the  executor  is  not  a  legatee  or  devisee,  but  an  indifferent  person, 
and  the  residuary  legatee  and  devisee  is  not  expressly  charged  with 
the  payment  of  debts  or  legacies,  and  the  residuary  devise  is  not  ex- 
pressed to  be  made  after  such  payment,  the  prior  legacies  and  debts 
are  not  charged.  {Myers  v.  Eddy,  supra.)  The  law  will  raise  no 
implication  in  such  a  case  to  change  the  ordinary  rule  for  the  pay- 
ment of  debts  and  legacies.  * 

Where  the  testator  by  his  will  directs  his  real  and  personal  estate 
to  be  sold  and  converted  into  a  common  fund,  charging  the  fund 
with  the  payment  of  debts  and  legacies,  it  has  been  held,  as  was 
said  by  the  learned  judge  in  Reynolds  v.  Reynolds,  {supra,)  that 
the  charge  is  not  primarily  upon  that  part  of  the  fund  arising  from 
the  personalty,  but  that  the  portion  arising  from  each  is  charged  pro- 
portionably.  {Roberts  v.  Walker,  1  Russ.  d  My  I.  752.  Kidney 
v.  CoussmaJcer,  1  Ves.jun.  436.  Salt  v.  Chattaivay,  3  Beavan,  576. 
Stocher  v.  Harbin,  3  id.  479.)  "'•' 

Section  V. 
Of  Executory  Devises,  and  of  the  Residuary  Clause  of  a  Will. 

The  subject  of  executory  devises  is  nearly  allied  to  that  of  con- 
tingent remainders,  and  has  been  adverted  to  in  a  previous  chapter, 
when  we  were  treating  on  that  subject.     {See  Part  1,  ch.  6,  p.  174.) 

An  executory  devise  is  a  limitation  by  will  of  a  future  contingent 
interest  in  lands,  contrary  to  the  rules  of  limitation  of  contingent 
estates  in  conveyances  at  law.  If  the  limitation  conforms  to  the 
rules  regulating  contingent  remainders,  it  is  a  remainder,  not  an 
executory  devise.  This  is  the  construction  whenever  a  remainder 
is  limited  upon  a  preceding  freehold.  {Doe  v.  llorgan,  3  Term  Rep. 
763.      Wolfe  V.  Van  Nostrand,  2  Comst.  442.)     The  changes  in- 

*  The  case  of  Tracy  v.  Tracy,  (15  Barb.  503,)  was  a  special  term  decision,  and  was 
correctly  decided,  but  upon  erroneous  reasons.  The  legacies  were  not  charged  by  the 
blending  and  combining  of  real  and  personal  estate,  but  by  the  "  rest,  residue  and 
remainder"  being  given  after  the  payment  of  debts.  See  remarks  of  Bowen,  J.  on 
this  case,  in  Reynolds  v.  Reynolds,  (2  Smith,  261.') 


524  EXECUTORY  DEVISES. 

troduced  by  the  revised  statutes  into  the  doctrine  of  future  estates 
have  made  certain  future  estates  contingent  remainders,  which 
formerly  coukl  be  upheld  only  as  executory  devises.  The  statute 
has  however  fixed  limits  to  the  power  of  the  owner  over  the  dispo- 
sition of  his  property.  It  has  made  all  future  estates  void  in  their 
creation  which  shall  suspend  the  absolute  power  of  alienation  for  a 
lono-er  period  than  during  the  continuance  of  not  more  than  two 
lives  in  being  at  the  creation  of  the  estate,  except  in  a  single  in- 
stance. That  instance  is,  that  a  contingent  remainder  in  fee  may 
be  created  on  a  prior  remainder  in  fee,  to  take  eflFect  in  the  event 
that  the  persons  to  whom  the  first  remainder  is  limited  shall  die  under 
the'age  of  twenty-one  years,  or  upon  any  other  contingency  by  which 
the  estate  of  such  persons  may  be  determined  before  they  attain 
their  full  age.  (1  R.  S.  723,  §§  14-16.)  The  power  of  alienation 
is  said  to  be  suspended  when  there  are  no  persons  in  being  by  whom 
an  absolute  fee  in  possession  can  be  conveyed. 

The  effect  of  the  statute  is  to  destroy  the  distinction  between 
contingent  remainders  and  executory  devises,  which  may  now  alike 
be  created  by  grant  or  by  will.  They  are  made  alike  applicable  to 
real  and  to  personal  property. 

The  questions  growing  out  of  these  statutory  changes  have,  in 
most  instances,  arisen  under  wills.  In  Irving  v.  De  Kay,  (9  Paige, 
521,)  the  subject  was  extensively  examined  by  the  chancellor  in  de- 
termining various  points  arising  out  of  the  will  of  the  late  Henry 
Eckford.  He  stated  some  of  the  principles  which  had  been  adopted 
by  his  court  and  affirmed  by  the  court  of  errors.  He  considered  it 
settled  that  an  estate  which  is  inalienable  for  an  absolute  term,  and 
which  is  not  so  limited  as  to  be  certainly  determinable  at  the  expi- 
ration of  not  more  than  two  lives  in  being  at  the  death  of  the  tes- 
tator, is  void  in  its  creation.  He  considered  it  also  as  well  settled, 
that  any  legal  trust  is  sufficient  to  sustain  a  devise  or  conveyance 
to  the  trustee,  of  an  estate  commensurate  with  such  trust,  without 
reference  to  other  illegal  trusts,  which  the  testator  or  grantor  has 
attempted  to  create  in  the  same  estate  as  distinct  and  separate  trusts. 

The  intention  of  the  testator,  when  ascertained  from  an  examin- 
ation of  the  will  in  connection  with  the  situation  of  his  property,  &c. 
at  the  time  of  making  his  will,  must  be  carried  into  effect  by  the 
courts,  so  far  as  is  consistent  with  the  rules  of  law.  Although  some 
of  the  objects  for  which  a  trust  is  created,  or  some  future  interests, 
limited  upon  the  trust  estate,  are  illegal  and  invalid,  if  any  of  the 


suspen'sion  of  power  of  alienation.  525 

purposes  for  which  the  trust  was  created  are  legal  and  valid,  and 
would  have  authorized  the  creation  of  such  an  estate,  the  legal  title 
vests  in  the  trustees,  during  the  continuance  of  such  valid  ohjects 
of  the  trust;  except  in  those  cases  where  the  legal  and  valid  objects 
of  the  trust  are  so  mixed  up  with  those  which  are  illegal  and  void, 
that  it  is  impossible  to  sustain  the  one  without  giving  effect  to  the 
other;  and  that  every  disposition  by  the  testator  of  an  estate  or  in- 
terest in  the  rents,  profits  or  income  of  his  real  or  personal  property, 
and  every  trust  in  the  will  which,  if  valid,  would  have  the  effect  of 
rendering  the  property  inalienable  for  a  longer  period  than  is  allowed 
"by  law,  and  every  remainder,  or  other  future  estate,  or  other  interest 
limited  upon  the  trust,  which  would  have  that  effect,  must  be  con- 
sidered and  treated  as  absolutely  void  and  inoperative,  in  determin- 
ing the  question  of  the  validity  of  a  devise  of  the  legal  estate  to 
trustees,  or  the  validity  of  any  other  provision  of  the  will.  (See 
Gott  V.  Cook  J  7  Faige,  521;  Van  Vechten  v.  Van  Veclden,  8  id. 
104;  Darling  v.  Rogers,  22  Wend.  483;  Amory  v.  Lord,  5  Seld. 
403.  Taylor  v.  Gould,  10  Barh.  388.  Haidey  v.  James,  16 
Wend.  61.) 

The  courts  have  held  that  the  provisions  of  the  revised  statutes 
prohibiting  a  suspension  of  the  power  of  alienation  for  more  than 
two  lives  in  being  at  the  creation  of  the  estate,  applies  as  well  to 
present  as  to  future  estates.  {Coster  v.  Lorillard,  14  Wend.  265.) 
And  that  a  limitation  which  may  by  possibility  suspend  the  abso- 
lute power  of  alienation  illegally,  is  void.  {Per  Nelson,  Ch.  J.  in 
Hawley  v.  James,  16  Wend.  120.) 

There  are  few  duties  more  difficult  to  be  performed  by  the  con- 
veyancer than  the  creation  of  future  estates  and  trusts,  in  such  a 
form  as  not  to  be  in  conflict  \sdth  some  provisions  of  the  revised 
statutes.  It  is  impossible  to  anticipate  all  objections  which  may 
arise,  or  to  prescribe  any  invariable  rules  which  will  avoid  all  ob- 
jections. The  careful  draftsman  must  examine  the  cases  which 
have  been  decided,  and  see  wherein  the  wills  which  were  the  subject 
of  discussion  were  erroneous,  and  in  what  respect  they  departed 
from  the  statute.  Those  wills  were  prepared  by  'learned  counsel, 
and  were  drawn  with  much  ability.  They  should  be  examined  in 
connection  with  the  criticism  to  which  they  were  subjected,  and  the 
ultimate  decision  of  the  courts.  They  thus,  as  corrected,  become 
models  which  may  bjg  safely  followed. 

If  a  will  makes  no  valid  disposition  of  any  part  of  the  estate,  real 


526  RESIDUARY  CLAUSE  OF  WILL. 

or  personal,  the  property  of  the  testator  must  l)e  distrihutod  as  m 
the  cases  of  intestacy.  A  testator  may  appoint  an  executor  and 
testamentaiy  guardian  by  a  will  which  is  invalid  in  every  other  re- 
spect.    {Bayeux  v.  Bayeux,  8  Paige,  333.) 

Distinct,  independent  provisions  in  a  Avill,  which  are  in  them- 
selves valid,  will  not  be  invalidated  by  other  separate  provisions 
which  are  contrary  to  law.  But  if  the  valid  and  invalid  provisions 
are  so  intermingled  that  they  cannot  be  separated  from  each  otlier, 
they  must  all  fall  together.  So  where  a  particular  provision,  which 
if  it  stood  alone  would  be  valid,  forms  a  part  of,  or  depends  upon 
a  general  purpose  of  the  testator  which  is  contrary  to  law,  it  is  void. 
(Haioley  v.  James,  5  Paige  318;  16  Wend.  fil.  LoriUard  v. 
Coster,  5  Paige,  172;  14  Wend.  265.  Haxtun  v.  Corse,  2  Barh. 
Ch.  506.  De  Kay  v.  Irvin,  5  Denio,  646,  affirming  9  Paige,  521. 
Parks  V.  Parks,  9  Paige,  107.) 

The  residuary  clause  in  a  will  is  in  general  inserted  to  prevent 
the  effect  of  an  intestacy.  It  means,  says  Chancellor  Kent,  in 
Lupton  V.  Lupton,  (4  John.  Ch.  623,)  that  the  testator  does  not 
intend  to  die  intestate  as  to  any  part  of  his  property,  and  it  gene- 
rally means  nothing  more. 

There  are  no  particular  words  necessary  to  a  residuary  bequest 
or  devise.  In  a  wall  disposing  of  both  real  and  personal  property, 
the  usual  formula  is:  "I  give,  devise  and  bequeath  all  the  residue 
of  my  estate,  real  and  personal,  to  A.  B.,  his  heirs  and  assigns,  for- 
ever." This  form  may  be  varied  to  meet  the  taste  of  the  framer  of 
the  will.  In  Howland  v.  The  Union  Theological  Seminary,  (1  Seld. 
193,)  the  residuary  clause  was  in  this  form :  "  As  to  all  the  rest 
and  residue  of  my  estate,  real  and  personal,  whatsoever  and  where- 
soever, I  give,  devise  and  bequeath  the  same  in  three  equal  parts, 
to  be  divided  as  follows,"  &c.  This  was  held  to  be  a  general  resid- 
uary clause,  disposing  of  all  the  testator's  estate  of  which  no  spe- 
cific disposition  was  made  by  other  parts  of  the  will. 

We  have  shown,  under  a  previous  head  in  this  chapter,  what  be- 
comes of  a  void  devise,  in  a  case  where  the  will  contains  a  residuary 
clause,  {see  §  3,  p.  514,)  and  it  need  not  be  repeated. 


NATURE  OF  AN  ABSTRACT.  527 


CHAPTEK  XI. 

or  abstracts;  examination  thereof;  searching  for  incum- 
brances, AND  PREPARING  THE  CONVEYANCE;  AND  BY  WHOSE 
EXPENSE. 

Section  I, 
Of  the  Nature  of  an  Abstract. 

When  land  is  to  be  conveyed  by  one  party  to  another,  it  is,  ac- 
cording to  the  English  practice,  the  duty  of  the  solicitor  for  the 
vendor  to  prepare  an  abstract  of  the  title;  and  of  the  solicitor  of 
the  purchaser  to  compare  the  abstract  with  the  deeds,  wills,  &c. 
The  general  practice  is  to  produce  the  deeds,  &c.  to  the  purchaser's 
solicitor,  at  the  office  of  the  vendor's  solicitor — whenever  they  are 
exhibited  the  purchaser  must  procure  some  person  on  his  behalf  to 
compare  the  abstract  with  the  evidence  of  title.  This  assumes  that 
the  same  person  does  not  act  as  solicitor,  at  the  same  time,  both 
for  the  vendor  and  purchaser.  It  is  in  general  desirable  in  cases  in 
any  respects  complicated,  that  each  party  should  be  represented  by 
his  own  counsel  or  solicitor. 

The  object  of  the  abstract  is  to  enable  the  purchaser  or  his  coun- 
sel to  judge  of  the  sufficiency  of  the  title,  and  of  the  incumbrances 
by  which  it  may  be  affected.  It  should,  therefore,  describe  what- 
ever will  tend  to  enable  the  purchaser  or  his  counsel  to  form  an 
opinion  of  the  precise  state  of  the  title,  at  law  or  in  equity,  together 
with  all  chances  of  eviction,  or  even  of  adverse  claims,  {Preston  on 
Abstracts,  vol.  1,  1-5.) 

According  to  Mr.  Preston,  the  general  practice  in  England  is  to 
take  the  commencement  of  the  title,  so  as  to  show  the  state  of  the 
evidence  for  a  period  of  sixty  years  at  least.  And  in  many  cases  it 
is  material  to  carry  back  the  title  even  to  a  more  remote  period. 
This  period  of  sixty  years  is  derived  from  the  analogy  to  the  stat- 
ute of  limitations  against  a  writ  of  right,  which  by  32  Henry  8,  ch. 
2,  was  fixed  at  that  period.  (3  BlacTc.  Com.  196,  Sharstvood's  ed.) 
The  application  of  that  principle  to  our  practice  would  shorten  the 
period  to  forty  years,  the  longest  limitation  in  our  statute.     {Code, 


528  ABSTRACT. 

§  75.  The  People  v.  Arnold,  4  Comst.  508.  The  People  v.  Van 
Pensselae?',  5  Seld.  291.) 

The  simplicity  of  our  law  of  real  estate,  compared  with  that  of 
England,  relieves  us  from  many  cases  of  doubt  and  uncertainty 
which  often  oppress  the  mind  of  their  conveyancers.  When  the 
title  to  land  has  been  derived  directly  from  the  state,  and  has  been 
held  by  the  vendor,  uninterruptedly,  till  the  day  when  he  proposes 
to  sell,  it  can  only  be  necessary  for  the  purchaser,  after  examining 
the  original  patent  from  the  land  office,  to  inquire  whether  the 
owner  has  in  any  way  subjected  the  estate  to  any  incumbrance  by 
mortgage,  judgment,  or  other  lien. 

Where  the  estate  has  passed  through  various  owners,  by  inter- 
mediate conveyances,  the  case  becomes  more  complex;  and  the  in- 
quiry for  incumbrances  must  be  extended  so  as  to  embrace  the  va- 
rious persons  through  whom  the  title  has  passed. 

If  the  estate  has  been  derived  by  any  of  its  owners  by  descent, 
additional  questions,  as  to  pedigree,  may  arise;  and  also  whether 
the  deceased  left  a  last  will  and  testament  or  not. 

If  any  of  the  parties  through  whom  the  title  has  passed,  derived 
his  ownership  by  devise,  still  another  class  of  questions  will  arise, 
either  as  to  the  competency  of  the  testator  to  make  a  will,  the  con- 
formity of  the  will  to  the  statutory  requirements  as  to  its  execution, 
the  structure  of  the  wiU  itself,  so  as  to  pass  real  estate,  and  whether 
the  estate  debased  is  charged  with  the  payment  of  debts  or  legacies, 
and  if  so,  whether  they  have  been  fully  paid;  and  whether  the 
estate  is  incumbered  with  any  claim  for  dower,  or  any  other  con- 
tingent right. 

If  the  vendor,  or  any  one  from  whom  he  derives  his  title,  acquired 
the  property  at  a  judicial  sale,  or  a  sale  under  a  judgment  and  ex- 
ecution, or  a  sale  for  taxes,  the  regularity  and  validity  of  those  sales 
may  be  brought  in  question. 

So  also  if  the  sale  to  any  of  the  parties  has  been  made  under  a 
power,  the  circumstances  required  to  the  valid  exercise  of  the  power 
should  be  stated,  as  far  as  they  are  material  to  the  operation  of  the 
deed.  If  the  deed  was  executed  by  attorney,  the  production  of  the 
power  of  attorney  should  be  required,  and  evidence  that  the  prin- 
cipal was  alive  when  the  deed  was  executed  by  the  attorney.  (1 
Sugden,  483.) 

It  is  obvious,  therefore,  that  the  subjects  of  inquiry,  with  respect 


SEAECHING  FOR  INCUMBRANCES.  529 

to  the  safety  of  a  purchase,  are  as  numerous  as  the  sources  of  the 
original  and  derivative  title  to  the  estate. 

We  shall  proceed  to  notice  some  of  the  necessary  points  to  which 
the  intention  of  a  purchaser,  or  a  party  proposing  to  advance  money 
on  the  credit  of  the  property,  should  be  directed. 

Section  II. 
Of  Searching  for  Incumhrances  against  the  Vendor. 

If  the  title  to  the  estate  about  to  be  conveyed  has  passed  through 
no  other  hands  than  those  of  the  vendor  after  being  derived  from 
the  state,  it  is  against  him  only  that  incumbrances  are  to  be  in- 
quired for. 

There  are  various  liens  which  the  owner  of  real  estate  may  cre- 
ate; but  which  to  be  available  against  hona  fide  purchasers,  for 
value  parted  with  at  the  time,  the  law  requires  an  entry  of  them 
in  some  public  office  so  as  to  be  accessible  to  a  reasonable  search. 

1.  Judgments  rendered  by  courts  of  record,  are  a  charge  upon 
the  land,  tenements,  real  estate  and  chattels  real  of  every  person 
against  whom  any  such  judgment  shall  be  rendered,  whicli  such 
2)erson  may  have  at  the  time  of  docketing  such  judgment,  or  which 
such  person  shall  acquire  at  any  time  thereafter;  and  such  real  es- 
tate and  chattels  real  are  subject  to  be  sold  upon  execution  to  be 
issued  on  such  judgment.  This  lien  continues  between  the  parties 
until  the  judgment  is  satisfied;  but  from  and  after  ten  years  from 
the  time  of  the  docketing  every  such  judgment,  it  ceases  to  bind  or 
be  a  charge  upon  any  such  property,  as  against  purchasers  in  good 
fsiith,  and  as  against  incumbrances  subsequent  to  such  judgment, 
by  mortgage,  judgment,  decree  or  otherwise.  (2  R.  S.  359,  §§  3,  4. 
Code,  ^  282.)  The  code  of  procedure  makes  it  a  lien  on  the  real  prop- 
erty of  the  judgment  debtor  in  the  county  where  it  was  rendered, 
and  in  any  other  county,  upon  the  filing  with  the  clerk  thereof  a 
transcript  of  the  original  docket. 

This  statute  is  held  to  be  a  short  limitation  in  favor  of  all  pur- 
chasers and  incumbrancers  whose  interests  arise  after  the  docket. 
With  respect  to  them,  whether  they  had  notice  of  the  judgment  or 
not,  they  take  the  land  free  and  discharged  of  the  lien.  {Little  v. 
Harvey,  9  Wend.  157.  Gra£  v.  Kipp,  1  Edio.  Ch.  R.  619.  Tnfts' 
Adm.  V.  Tiifts,  18  Wend.  621.  Scott  v.  Howard,  3  Barb.  319. 
Muir  V.  Leitch,  7  id.  341.)     But  the  judgment  continues  a  Hen  on 

Will.— 34 


530  WHAT  JUDGMENTS  ARE  A  LIEN. 

the  real  estate  as  against  the  defendant  in  the  judgment  and  his 
heirs,  and  as  against  tlie  grantee  of  the  defendant  Avithout  valuable 
consideration.     (Scott  v.  Hoioard,  supra.) 

The  same  principles  are  extended  to  the  judgments  of  justices  of 
the  peace  amounting  to  twenty-five  dollars  or  upwards.  Such  judg- 
ment, on  filing  a  transcript  thereof  in  the  office  of  the  clerk  of  the 
county  where  the  judgment  was  rendered,  from  the  time  of  such 
filing,  becomes  a  judgment  of  the  county  court.  A  certified  trans- 
cript of  such  judgment  may  be  filed  and  docketed  in  the  clerk's  of- 
fice of  any  other  county,  with  the  like  effect  in  every  respect,  as  in 
the  county  where  the  judgment  was  rendered;  except  that  it  is  a 
lien  only  from  the  time  of  filing  and  docketing  the  transcript. 
(Code,  §  63.) 

With  regard  to  judgments  rendered  by  the  federal  courts,  it  was 
said  by  the  chancellor  in  Manhattan  Co.  v.  Fvertson,  (6  Paige, 
466,)  that  there  is  no  act  of  congress  making  a  judgment  of  those 
courts  a  lien  upon  the  lands  of  the  judgment  debtor  within  the 
general  territorial  jurisdiction  of  the  court,  or  elsewhere.  The  ex- 
istence of  such  lien,  therefore,  depends  npon  the  local  law  of  tho 
state  where  the  land  is  situated  upon  which  such  lien  is  claimed. 
This  is  so  settled  by  the  supreme  court  of  the  United  States.  (Tay- 
lor v.  Thompson's  Lessees,  5  Peters,  358.) 

The  chancellor  said  in  the  same  case,  (6  Paige,  468,)  that  the 
lien  of  a  judgment  recovered  in  one  of  the  circuit  or  district  courts 
of  the  United  States  within  the  limits  of  this  state,  is  a  lien  upon 
the  lands  of  the  debtor  lying  within  the  territorial  jurisdiction  of 
such  court,  for  the  term  of  ten  years  from  the  docketing  of  such 
judgment,  in  the  same  manner  as  the  judgment  of  a  court  of  record 
in  one  of  the  state  courts  is  a  lien.  But  he  thought  that  though 
those  courts  could  issue  executions  to  the  marshals  of  other  districts 
than  that  in  which  the  judgment  was  obtained,  the  lien  of  the 
judgment  upon  the  lands  of  the  debtor  must  be  confined  to  the  lands 
of  the  state  in  which  the  court  is  held,  and  the  judgment  obtained. 

Previous  to  the  revised  statutes  of  1830,  a  judgment  in  a  court 
of  record  in  this  state  was  a  lien  upon  the  lands  of  the  judgment 
debtor  from  the  time  of  the  entry  thereof,  whether  docketed  or  not. 
But  if  the  judgment  was  not  properly  docketed,  it  does  not  afiect 
the  lands  of  the  judgment  debtor,  as  against  subsequent  purchasers 
or  mortgagees.     The  efiect  of  the  revised  statutes  was  to  prevent 


LIEN"  OF  JUDGMENTS.  531 

the  common  law  lien  of  the  judgment  from  attaching  at  all  upon 
the  real  estate  of  the  judgment  debtor  until  the  judgment  has  been 
actually  docketed.     (Buchan  v.  Sumner,  2  Barb.  Ch.  165.) 

The  general  lien  of  a  judgment  upon  the  real  estate  of  the  debtor 
is  subject  to  all  equities  which  existed  against  such  real  estate,  in 
favor  of  third  persons,  at  the  time  of  the  recovery  of  such  judgment; 
and  a  court  of  equity  will  so  control  its  legal  lien  as  to  restrict  it  to 
the  actual  interest  of  the  debtor  in  the  property,  and  to  protect 
prior  equitable  interests  in  such  property,  or  the  proceeds  thereof. 
{Buchan  v.  Sumner,  supra.*  Matter  of  Hoioe,  1  Paige,  125. 
White  V.  Carpenter,  2  id.  217.     Kersted  v.  Avery,  4  id.  9.) 

If  a  judgment  be  duly  docketed,  it  is  notice  to  all  the  world  of 
its  existence,  and  a  party  can  gain  nothing  by  alleging  his  ignorance 
of  it.  {Pierce  v.  AIsop,  3  Barb.  Ch.  195.)  It  is  his  duty  to  cause 
the  requisite  search  to  be  made  in  the  proper  office,  and  to  obtain 
the  certificate  of  the  clerk  as  to  the  facts  disclosed  by  the  docket. 

We  have  discussed,  in  a  previous  chapter,  (Part  3,  ch.  6,)  the 
subject  of  judgments  against  various  parties,  and  of  title  under 
sales  by  the  sheriff,  to  which  the  reader  is  referred.  It  will  there 
be  seen  how  far  judgments  are  a  lien  upon  the  real  estate  of  parties. 

We  have  seen  that  the  ordinary  limitation  of  the  lien  of  a  judg- 
ment upon  the  real  estate  of  the  judgment  debtor,  is  ten  years  from 
the  docketing  of  the  judgment.  But  in  case  the  judgment  creditor 
shall  be  restrained  from  proceeding  thereon,  by  injunction  or  by 
the  operation  of  a  writ  of  error,  the  time  during  which  he  is  so 
stayed  constitutes  no  part  of  the  ten  years,  if  the  party  so  delayed 
proceeds  as  directed  by  the  act,  to  entitle  him  to  such  deduction. 
For  this  purpose  he  is  required  to  file  with  the  clerk  of  the  court  in 
which  the  judgment  was  obtained,  a  notice  specifying  the  injunc- 
tion or  writ  of  error  by  which  the  judgment  shall  be  restrained,  and 
the  time  of  the  service  thereof;  and  if  such  restraint  shall  have 
ceased,  such  party  shall  specify  the  duration  thereof.  The  clerk  is 
required  to  enter  in  the  margin  of  the  docket  of  the  judgment  a 
minute  stating  that  an  injunction  or  writ  of  error,  as  the  case  may 
be,  has  been  issued,  relating  to  such  judgment.  A  copy  of  this 
notice  is  required  to  be  transmitted  by  the  clerk  with  his  docket  of 
judgment  to  the  other  clerks  of  the  court,  at  .the  same  time  and  in. 
the  same  manner.     (2  R.  S.  359,  §§  5,  6.) 

The  foregoing  provision  was  contained  in  the  revised  statutes; 
and  the  code,  (§  282,)  as  amended  in  1851,  contains  a  correspond- 


532  LIEN  EXTINGUISHED  BY  SALE. 

ing  provision.  It  enacts  that  whenever  an  ai)])eal  from  any  judg- 
ment shall  be  pending,  and  the  undertaking  requisite  to  stay  exe- 
cution on  such  judgment  shall  have  been  given,  and  the  appeal 
perfected  as  provided  in  the  code,  the  court  in  which  the  judgment 
was  recovered  may,  on  special  motion,  after  notice  to  the  person 
owning  the  judgment,,  in  such  terms  as  they  shall  see  fit,  direct  an 
entry  to  be  made  by  the  clerk  on  the  docket  of  such  judgment  that 
the  "  same  is  recovered  on  ai)peal,"  and  thereupon  it  shall  cease, 
during  the  pending  of  the  appeal,  to  be  a  lien  on  the  real  property 
of  the  judgment  debtor  as  against  purchasers  and  mortgagees 
in  good  faith. 

A  judgment  may,  in  certain  cases,  be  entered  up,  filed  and  dock- 
eted against  a  party  who  is  dead,  within  one  year  after  such  death, 
A  suggestion  of  such  death,  if  it  happened  before  judgment,  shall 
be  entered  on  the  record,  and  if  after  judgment,  the  fact  must  be 
certified  on  the  back  of  the  record  by  the  attorney  filing  it.  Such 
judgment,  however,  does  not  bind  the  real  estate  which  the  party 
had  at  his  death,  but  is  considered  as  a  debt  to  be  paid  in  the  usual 
course  of  administration.  If  a  verdict  has  been  rendered  before  the 
death  of  the  party,  upon  which  the  proceedings  shall  be  stayed  by 
a  bill  of  exceptions,  or  by  any  order  of  the  court,  or  any  officer 
thereof,  the  court  is  allowed  to  authorize  the  filing  and  docketing  a 
record  of  the  judgment,  within  one  year  after  the  death  of  such  party, 
subject  to  the  power  of  the  court  to  vacate  the  same.  (2  B.  S. 
359,  §§7,  8.     Nichols  v.  Chapman,  9  Wend.  452.) 

With  regard  to  the  interest  which  a  party  has  under  a  contract 
for  the  purchase  of  land,  the  revised  statutes  enact  that  it  shall  not 
be  bound  by  the  docketing  of  a  judgment  or  decree,  or  by  the  issu- 
ing of  an  execution.  In  such  a  case,  after  the  return  of  the  execu- 
tion unsatisfied,  the  creditor  may  go  into  a  court  of  equity  for  the 
sale  of  the  defendant's  interest  in  the  contract,  for  the  payment  of 
the  debt.  (1  R.  S.  744,  §§  4-6.  Griffin  v.  Spencer,  6  Hill,  525. 
Talbot  V.  Chamherlin,  3  Paige,  220.  Brewster  v.  Poiver,  10  id, 
562.     Appjroved  in  Garjidd  v.  Hatmaker,  1  Smith,  475.) 

The  lien  of  a  judgment  is  not  afifected  by  the  plaintiff  binding 
himself  not  to  take  put  execution  for  any  time  less  than  the  ten 
years,  (dluir  v.  Leitch,  7  Bai'b.  341.)  But  it  is  extinguished  by 
a  sale  of  the  land,  upon  an  execution  issued  upon  the  judgment. 
If  the  judgment  is  not  satisfied  in  whole  by  such  sale,  it  will  attach 


WHEN  DISCHARGED  OF  RECORD.  533- 

to  a  subsequently  acquired  title  of  the  debtor.     {Russell  v.  Allen, 
10  Paige,  249.) 

It  will  sometimes  happen  that  the  certificate  of  the  clerk  will 
disclose  the  existence  of  judgments  against  the  vendor  which  are 
undischarged  of  record.  If  it  be  knoid7i  that  such  judgments  have 
been  paid,  a  purchaser  may  with  safety  complete  his  purcliase;  for 
a  judgment,  after  it  has  been  fully  paid  and  satisfied,  cannot  be 
kept  on  foot  to  cover  new  demands  of  the  plaintifi".  (Troup  v. 
Wood,  4  John.  Ch.  228.)  Part  payment  on  a  judgment  discharges 
the  lien  to  that  extent,  and  no  agreement  between  the  parties  can 
restore  it,  as  against  third  persons.  (Marvin  v.  Vedder,  5  Cowen, 
671.     De  la  Vergne  v.  Evertson,  1  Paige,  181.) 

The  more  prudent  course  for  the  purchaser,  in  such  a  case,  is  to 
cause  satisfiiction  to  be  acknowledged  by  the  judgment  creditor,  and 
to  have  the  docket  of  the  judgment  canceled  and  discharged  by  the 
clerk  of  the  court.  This  will  be  done  upon  the  filing  with  the  clerk 
an  acknowledgment  of  satisfaction,  signed  by  the  party  in  whose 
favor  the  judgment  was  obtained,  or  by  his  executors  or  adminis- 
trators, duly  authenticated.  (2  B.  S.  362.)  It  may  also  be  made 
by  the  attorney  on  record  of  the  party  in  %vhose  favor  the  judgment 
was  rendered,  within  two  years  after  the  filing  of  the  record  of  such 
judgment,  in  the  same  manner  and  with  the  like  effect  as  if  made 
by  such  party  himself  When  made  by  the  attorney  it  is  not  con- 
clusive against  the  principal  in  respect  to  any  person  to  whom  ac- 
tual notice  of  the  revocation  of  the  authority  of  such  attorney  shall 
have  been  given,  before  any  payment  on  such  judgment  shall  have 
been  made,  or  before  any  purchase  of  property  bound  by  such  judg- 
ment shall  have  been  effected.  (Id.  §  24.  Benedict  v.  Smith,  10 
Paige,  126.) 

The  statute  also  provides  for  cases  where  the  judgment  creditor 
resides  out  of  the  state.  In  such  a  case,  the  acknowledgment  of 
the  satisfaction  piece,  signed  by  the  party,  or  by  his  executors  or 
administrators,  mdy  be  taken  before  either  of  the  ofiicers  before 
whom  conveyances  of  real  estate  may  be  acknowledged  or  proved, 
by  persons  residing  or  being  out  of  this  state.  (L.  of  1834,  ch.  262, 
§  1.  SB.  S.  640,  5th  ed.)  The  same  statute  provides  that  in  all 
cases  of  acknowledgment  of  satisfaction  of  judgment,  by  virtue  of 
a  letter  of  attorney,  or  other  instrument  containing  a  power  to  ac- 
knowledge satisfaction,  such  letter  or  instrument  must  be  acknowl- 
edged by  the  party  executing  the  same,  or  proved  by  a  subscribing 


534  EFFECT  OF  SHERIFF'S  RETURN. 

witness  thereto  in  the  manner  prescribed  by  law,  before  the  clerk 
of  the  court  in  which  the  judgment  has  been  rendered,  or  before 
either  of  the  officers  before  whom  conveyance  of  real  estate  may  now 
be  acknowledged  or  proved;  and  such  letters  of  attorney  or  other 
instruments  must  be  filed  with  such  clerk,  with  the  satisfaction 
piece.     (Id.  §  2.) 

It  is  made  the  duty  of  the  attorney  to  acknowledge  satisfaction, 
when  the  judgment  is  paid  to  him,  on  payment  of  the  fees  by  the 
defendant.  (2  R.  S.  362.)  It  is  the  judgment  debtor  alone  who 
has  any  interest  in  having  the  judgment  lien  removed,  and  it  should 
therefore  be  done,  if  done  at  all,  at  his  expense. 

It  is  the  payment  of  the  judgment  which  operates  as  the  dis- 
charge of  it.  The  satisfaction  piece  is  merely  the  evidence  to  the 
clerk  of  such  payment. 

But  the  statute  has  also  given  to  the  sheriff's  return  on  the  exe- 
cution issued  upon  the  judgment,  the  effect  of  an  authority  to  the 
clerk  to  enter  satisfaction  of  record  to  the  extent  of  the  amount  re- 
turned by  the  sheriff  as  havang  been  collected  by  him  on  the  execu- 
tion; unless,  indeed,  such  return  be  vacated  by  the  court.  On  the 
return  of  the  execution,  the  clerk  is  required  to  enter  in  the  docket 
of  the  judgment,  the  fact  that  the  amount  stated  in  the  return  to 
have  been  levied,  has  been  collected.     (2  Jl.  S.  362,  §  26.) 

If  a  judgment  be  reversed,  vacated,  or  satisfied  of  record,  the 
proper  certificate  of  the  clerk  of  the  court  with  whom  such  judg- 
ment is  entered  of  that  fact  under  his  seal  of  office  is  made  suffi- 
cient authority,  on  being  filed  with  the  clerk  of  any  county  with 
whom  such  judgment  or  decree  may  have  been  duly  docketed,  to 
discharge  and  cancel  such  docket  thereof.  {L.  of  1844,  ch.  104, 
§  5.     SB.  S.  641,  5th  ed.) 

The  satisfaction  piece,  though  filed,  is  not  a  record,  but  a  mere 
warrant  to  the  clerk  to  enter  satisfaction  on  the  roll.  (Lowns  v. 
Hemsen,  7  Wend.  35.) 

A  party  having  an  interest  in  knowing  the  extent  of  the  incum- 
brances by  judgment  against  the  owner  of  real  estate,  is  thus  ena- 
bled to  ascertain  the  facts,  and  can  pursue  his  inquiries  as  far  as 
may  be  necessary  for  that  purpose.  There  are,  however,  some  cases 
in  which  the  amount  stated  in  the  judgment  will  not  disclose  the 
exact  amount  due,  but  it  gives  the  limit  beyond  which  it  cannot  be 
extended.  A  judgment  may  be  taken  as  a  security  for  a  debt 
already  due,  or  advances  thereafter  to  be  made.     It  may  be  taken 


TOWN  COLLECTOR'S  BOND.  535 

as  a  continuing  security,  for  advances  to  be  made  by  the  obligee. 
( Wilder  v.  Winne,  6  Cowen,  284,  affirming  4  Wend.  100.     Trus- 
cott  V.  King,  6  Barb.  346.)     A  person  who  has  taken  such  security 
will  be  protected  whether  the  arrangement  appears  on  the  ftxce  of 
the  papers,  or  rests  in  parol.     {Id.     Bank  of  Ufica  v.  Finch,  3 
Barb.  Ch.  293.)     If  after  the  taking  of  a  judgment  to  secure  an 
existing  demand  and  future  advances,  another  creditor  obtains  a 
mortgage  on  the  same  lands,  after  the  recording  of  which  the  judg- 
ment creditor  makes  further  advances  ;  in  such  a  case  the  question 
will  arise  as  to  which  is  to  be  preferred,  the  judgment  creditor  for 
his  future  advances,  or  the  mortgage  creditor  who  obtained  his  lien 
before  the  subsequent  advances  were  made  by  the  judgment  cred- 
itor.    This  question  has  been  settled  by  the  courts  in  favor  of  the 
judgment  creditor.     The  recording  acts  do  not  make  the  recording 
of  a  mortgage  constructive  notice  to  a  prior  incumbrancer,  but  only 
to  such  as  are  posterior  in  point  of  time.     There  is  no  fraud,  there- 
fore, in  the  judgment  creditors  making  subsequent  advances  on  the 
fiiith  of  the  judgment,  unless  he  had  actual  notice  of  the  interven- 
ing incumbrances;  the  recording  of  the  mortgage  not  being  con- 
structive notice  to  him  for  this  purpose.     {Truscott  v.  King,  supra. 
Stuyvesant  v.  Hall,  2  Barb.  Ch.  151.)     His  equity  is  stronger  than 
that  of  the  intervening  mortgagee;  because  as  to  him  the  judgment 
is  constructive  notice  of  the  extent  of  the  advances  wdiich  are  in- 
tended to  be  secured,  and  he  must  be  presumed  to  have  taken  his 
security  with  reference  to  the  whole  amount  of  the  judgment;  un- 
less there  be  positive  notice  when  he  takes  his  mortgage,  that  only 
a  part  of  the  money  mentioned  in  the  judgment  had  been  advanced, 
and  the  subsequent  loan  of  the  judgment  creditor  was  made  with 
full  knowledge  of  that  fact. 

2.  Another  case  of  general  lien  arises  in  the  case  of  town  collect- 
ors, whose  official  bond  is  declared  to  be  a  lien  on  all  the  real  estate 
held  jointly  or  severally  by  the  collector  or  his  sureties,  within  the 
county,  at  the  time  of  filing  the  said  bond  in  the  office  of  the  clerk 
of  the  county;  and  it  is  enacted  that  it  shall  continue  such  lien  tiU 
its  condition,  together  with  all  charges  which  may  accrue  by  the 
prosecution  thereof,  shall  be  fully  paid.  {Laws  of  1823,  400,  §  26. 
1  R.  S.  346.  Id.  826,  5th  ed.)  This  bond  is  required  to  be  exe- 
cuted to  the  supervisor  of  the  town  within  eight  days  after  the 
election  of  the  collector,  in  double  the  amount  of  the  taxes  to  be 
collected  by  him,  and  to  be  filed  by  the  supervisor  within  six  daya 


536  LIEN  FOR  TAXES. 

thereafter,  ^\itli  his  aiiprobation  indorsed  thereon  in  tlie  office  of 
the  county  clerk,  who  is  required  to  make  an  entry  thereof,  in  a  book 
to  be  provided  for  that  purpose,  in  the  same  manner  in  which  judg- 
ments are  entered  of  record. 

If  the  vendor  has  been  a  town  collector  of  taxes  or  a  surety  for 
such  collector,  a  search  in  the  county  clerk's  office  -will  thus  disclose 
the  extent  of  the  lien  upon  the  real  estate  owned  by  them,  or  either 
of  them;  and  an  examination  at  the  office  of  the  county  treasurer 
of  the  county  will  afford  decisive  information  whether  the  condition 
of  the  bond  has  been  complied  with  or  not.  Indeed,  upon  the  set- 
tlement of  the  amount  of  taxes  directed  to  be  collected  by  any  col- 
lector in  any  town  or  ward,  (the  city  of  Neio  York  excepted,)  the 
county  treasurer,  if  requested,  is  required  to  give  the  collector,  or 
to  any  of  his  sureties,  a  satisfaction  piece  in  writing,  and  to  ac- 
knowledge the  same  before  some  person  authorized  to  take  the 
acknowledgments  of  the  satisfaction  of  judgments  in  courts  of  record. 
(1  B.  S.  401,  §  20.  Id.  925,  5fh  ed.)  Upon  the  production  of 
such  satisfaction  piece,  acknowledged  as  aforesaid,  the  clerk  of  the 
county  is  required  to  enter  satisfaction  of  record  of  the  collector's 
bond,  w^hich  shall  be  thereby  discharged.  (Id.  §  21.)  It  is  there- 
fore an  easy  matter  to  determine  whether  the  bond,  at  any  given 
time,  is  a  subsisting  lien  or  not 

3.  Another  class  of  general  lien  arises  from  the  act  for  the  assess- 
ment and  collection  of  taxes.  Taxes  on  real  estate  are  a  lien  upon 
the  same.  If  they  are  returned  unpaid  in  consequence  of  the  prem- 
ises becoming  vacant,  or  in  default  of  goods  and  chattels  of  the 
occupant  to  pay  them,  the  supervisor  of  the  town  is  required  to 
add  a  description  thereof  to  the  assessment  roll  of  the  next  year  in 
the  part  thereof  appropriated  to  taxes  on  lands  of  non-residents, 
and  to  charge  the  same  with  the  uncollected  tax  of  the  preceding 
year;  and  the  same  proceedings  shall  be  had  therein  in  all  respects 
as  if  it  was  the  land  of  a  non-resident,  and  as  if  such  tax  had  been 
laid  in  the  year  in  which  the  description  is  so  added.  (1  B.  S.  925, 
5th  ed.)  In  a  subsequent  part  of  the  act,  it  is  required  that  when- 
ever any  tax  charged  on  lands  returned  to  the  comptroller,  and  the 
interest  thereon,  shall  remain  unpaid  for  two  years  from  the  first 
of  May  following  the  year  in  which  the  same  was  assessed,  the 
comptroller  shall  proceed  to  advertise  and  sell  such  land  in  the 
manner  directed  by  the  act.     (Id.  930.) 


SPECIFIC  LIENS.  537 

The  proceedings  on  the  assessment  and  collection  of  taxes  are 
foreign  from  the  subject  of  this  treatise.  It  is  enough  to  know  that 
the  hind  tax  creates  a  lien  upon  the  real  estate  so  taxed;  and  that 
an  application  to  certain  officers,  the  collector,  supervisor  of  the 
town,  county  treasurer,  or  the  comptroller,  as  the  case  may  be,  the 
extent  of  that  lien  may  be  ascertained,  and  the  amount  discharged. 

A  separate  and  independent  provision  for  the  sale  of  lands  for 
taxes  exists  in  the  city  and  county  of  New  York,  under  the  direc- 
tion of  officers  of  the  local  government.  An  application  to  the 
comptroller  of  the  city  will  probably,  in  most  cases,  afford  the 
requisite  evidence  of  the  state  of  the  premises  sought  to  be  bought 
or  sold,  with  respect  to  taxes,  (1  R.  S.  967  et  seq.  5th  ed.)  It  is 
j)resumed  that  in  most  of  the  cities  and  in  many  of  the  villages  of 
the  state,  there  are  local  laws  of  taxation  and  assessment,  affecting 
the  real  estate  within  their  bounds.  A  party  dealing  with  lands  so 
situated  can  generally  ascertain,  without  difficulty,  from  the  local 
officers,  whether  any  portion  of  the  real  estate  is  incumbered  by 
taxes  or  assessments,  and  the  extent  thereof.  It  will  not  be  at- 
tempted to  collect  a  digest  of  these  local  statutes.  Many  of  them 
are  changed,  from  time  to  time,  by  the  legislature. 

4.  In  addition  to  the  general  liens  which  have  been  adverted  to, 
lands  are  subject  to  specific  liens  created  by  the  owner,  by  mort- 
gage, either  for  the  payment  of  money,  or  for  the  performance  of 
covenants.  Mortgages,  like  judgments,  may  be  taken  to  secure  fu- 
ture advances ;  and  the  same  principles  are  applicable  to  them  as  to 
judgments  taken  in  the  same  way.  The  cases  which  we  have  been 
considering  in  relation  to  judgments  are  applicable  to  mortgages, 
and  need  not  be  repeated,     {Averill  v.  Louckes,  6  Barh.  19,  470.) 

AVe  have  treated,  in  a  former  part  of  this  work,  of  mortgages  in 
general,  of  the  recording  thereof,  and  of  the  priority  amongst  suc- 
cessive mortgages.  {See  ante,  p.  119.)  The  statute  has  pointed 
out  a  convenient  waj^  for  the  discharge  of  the  lien  of  a  mortgage, 
without  any  reconveyance  by  the  mortgagee  to  the  mortgagor. 
With  us  a  mortgage  is  treated  as  security  for  the  payment  of  a 
debt,  or  the  fulfillment  of  an  obligation.  The  mortgagor,  until 
foreclosure,  is,  for  most  substantial  purposes,  treated  as  the  owner 
of  the  land,  as  to  all  persons  but  the  mortgagee.  (Jticnyan  v.  J/t^r- 
sereau,  11  JoJm.  534.  Hitchcock  v.  Harrington,  6  id.  290.  Coles 
V.  Coles,  15  id.  319.)     If,  upon  search,  the  premises  attempted  to 


538  SATISFACTION  PIECE. 

"be  sold  are  incumbered  by  mortgage,  the  purcliaser  will  naturally 
insist  not  only  that  the  mortgage  shall  be  paid  oflf,  but  that  it  shall 
be  discharged  of  record.  The  statute  provides  u])on  what  evidence 
the  clerk  in  whose  office  the  mortgage  is  recorded  may  make  this 
entry.  It  is  a  certificate  signed  by  the  mortgagee,  his  jx'rsonal 
representatives  or  assigns,  acknowledged  or  proved  and  certified  in 
the  manner  therein  prescribed,  to  entitle  conveyances  to  be  recorded, 
specifying  that  such  mortgage  has  been  paid,  or  otherwise  satisfied 
and  discharged.  This  certificate,  and  the  proof  or  acknowledgment 
thereof,  must  be  recorded  at  full  length;  and  a  reference  must  be 
made  to  the  book  and  page  containing  such  record,  in  the  minute 
of  the  discharge  of  such  mortgage,  made  by  the  officer  upon  the 
record  thereof.     (1  R.  S.  761,  §§  28,  29.     3  E.  S.  57,  5th  ed.) 

If  the  mortgage  has  been  assigned,  the  assignee,  it  has  been  seen, 
is  the  party  to  give  the  satisfaction  piece.  The  clerk  cannot  know, 
but  from  the  assignment  in  wTiting  itself,  that  the  assignee  has 
authority  to  grant  the  discharge;  and  hence  it  is  desirable,  when  a 
bond  and  mortgage  are  assigned,  that  it  should  be  done  by  a  written 
assignment,  proved  or  acknowledged  in  the  same  manner  as  deeds 
are  required  to  be  proved  or  acknowledged  in  order  to  be  recorded. 
The  record  of  this  assignment  will  be  the  authority  for  the  clerk  to 
carry  into  effect  the  certificate  of  discharge  by  the  assignee.  Though 
this  record  is  not  constructive  notice  to  a  mortgagor,  or  his  heirs  or 
personal  representatives,  so  as  to  invalidate  any  payment  made  by 
them  or  either  of  them  to  the  mortgagee,  it  is  doubtless  notice  as 
against  persons  claiming  by  virtue  of  some  subsequent  assignment  or 
conveyance  from  the  mortgagee,  or  assignor  of  the  mortgage,  or  his 
representatives;  (1  B.  S.763,  §41.  The  Neiv  York  Life  Ins.  and 
Trust  Co.  V.  Smith,  2  Barb.  Ch.  84;)  and  it  is  notice  to  the  clerk 
with  whom  the  mortgage  is  recorded. 

In  case  of  the  death  of  the  mortgagee  the  power  to  give  the  sat- 
isfaction piece,  on  payment,  is  vested  in  his  executors  or  adminis- 
trators. A  certificate  from  the  surrogate's  office  of  the  county  in 
which  probate  of  the  will,  or  letters  of  administration  'have  been 
granted,  showing  that  the  party  to  whom  it  is  given  is  the  duly 
qualified  executor  or  administrator  of  the  estate  of  the  deceased,  will 
furnish  to  the  clerk  of  the  county  in  which  the  mortgage  is  regis- 
tered the  requisite  evidence  of  such  appointment;  and  authorize 
him  to  act  upon  it  accordingly. 

The  foregoing  remarks  have  been  made  upon  the  supposition, 


TITLE  BY  DESCENT  OR  DEVISE.  539 

that  the  title  to  the  premises  intended  to  be  sold  or  incumbered  by- 
mortgage,  have  only  passed  through  a  single  individual  after  being- 
granted  by  the  government.  This  furnishes  but  a  small  part  of 
the  cases  which  will  arise  in  daily  practice  in  the  conveyancer's  of- 
fice. In  most  cases,  the  title  wiU  have  passed  through  various  in- 
dividuals, by  different  conveyances.  Safety,  therefore,  will  require 
that  a  similar  process  of  search  for  liens  created  or  occasioned  by 
the  successive  owners,  should  be  pursued.  The  abstract  will  con- 
tain the  deduction  of  title  from  a  former  owner  sufficiently  remote 
from  the  present  period  to  induce  the  belief,  that  there  are  no  sub- 
sisting liens  of  an  earlier  date;  and  the  search  for  liens  and  incum- 
brances will  be  conducted  with  reference  to  the  subsequent  succes- 
sive owners.  In  this  mode  alone  can  the  premises  be  shown  to  be 
entirely  unincumbered. 

Section  III. 
Of  the  Examination  of  a  Title  derived  hy  Descent ^  and  hy  Devise. 

1.  By  descent.  If  the  party  intending  to  sell  or  mortgage  the 
premises  in  question  has  derived  title  thereto  by  descent  from  his 
ancestor,  in  addition  to  the  inquiry  whether  the  property  has  not 
been  incumbered  by  him,  a  variety  of  other  questions  will  arise  and 
have  to  be  investigated.  These  relate  both  to  the  title  of  the  an- 
cestor, and  the  right  of  the  vendor  by  descent. 

In  making  the  investigation  of  this  subject  the  counsel  will  bear 
in  mind  the  law  of  descent,  dower,  wills,  escheat,  statute  of  Kmita- 
tions,  both  as  they  existed  prior  to  the  revision  in  1830,  and  as  they 
now  exist.  These  subjects  have  been  sufficiently  adverted  to  under 
appropriate  heads,  and  need  not  be  repeated. 

The  same  line  of  inquiry  with  respect  to  the  ancestor  will  have 
to  be  pursued  as  was  indicated  in  the  last  section.  It  may  be  that 
the  purchase  deed  of  the  ancestor  is  sufficiently  remote  in  point  of 
time  to  be  the  foundation  of  the  commencement  of  the  examination. 
If,  for  example,  he,  or  those  under  whom  he  claims,  had  been  in  the 
peaceable  and  uninterrupted  occupation  of  the  premises,  as  owner, 
for  a  period  of  twenty  years  or  upwards  before  and  at  the  time  of 
his  death,  without  any  controversy  as  to  his  title;  such  deed  fol- 
lowed up  by  continued  possession,  in  subordination  to  that  title, 
furnishes  a  strong  presumption  of  its  goodness.  This  presumption 
is  said  to  be  greatly  strengthened  if  there  have  been  frequent  changes 


540  TITLE  BY  DESCENT.. 

of  ownership,  without  any  adverse  chiim.  (1  Prest.  on  Ahs.  17.) 
Whether  it  will  be  necessary  to  abstract  ancient  deeds,  which  the 
vendor  may  have  relating  to  the  title  of  his  vendor,  or  whether  it 
will  be  sufficient  to  rest  upon  the  purchase  deed  alone,  and  to 
examine  the  title  from  that  period,  has  sometimes  been  made  a 
question. 

To  abstract  all  the  deeds,  would  in  many  cases  invite  tedious  in- 
quiries and  long  discussions,  which  would  answer  no  useful  jnirpose 
to  the  purchaser,  Mr.  Preston  thinks  that  a  discretion  ought  to 
be  exercised  on  this  point. 

While  no  substantial  defect  in  the  title  ought  to  be  concealed, 
by  withholding  the  knowledge  of  the  deeds,  which  may  give  a  dif- 
ferent complexion  to  it,  so,  on  the  other  hand,  it  cannot  be  expect- 
ed that,  on  mere  matters  of  form,  the  vendor  should  furniph  the 
means  of  enabling  a  reluctant,  or  over  cautious  purchaser,  or  those 
professional  men  who  are  more  nice  than  wise,  to  treat  the  title  as 
difficult  or  doubtful;  when  no  one,  acting  with  a  sound  discretion, 
would  view  it  as  attended  ^\'ith  either  doubt  or  difficulty.     {Id.  18.) 

If  the  purchase  deed  under  which  the  ancestor  held  is  sufficiently 
remote  to  exclude  the  presumption  of  any  adverse  claim,  it  will  be 
sufficient  to  examine  as  to  incumbrances  created  or  suffered  by  the 
ancestor,  or  any  of  those  under  whom  he  claims,  in  the  intermedi- 
ate time. 

It  will  be  important  to  inquire  whether  the  ancestor  left  a  widow 
who  has  any  claim  of  dower,  and  if  so,  whether  it  lias  been  released 
or  discharged.  It  will  also  be  necessary  to  ascertain,  in  case  there 
has  been  in  the  meantime,  frequent  change  of  ownership  of  the 
property,  whether  the  successive  vendors  were  married  or  not,  and 
if  married,  whether  their  wives  united  in  the  conveyance  in  such 
form  and  by  such  private  acknowledgement,  apart  from  their  hus- 
bands, as  to  discharge*  their  contingent  right  of  dower  to  the  prem- 
ises. {Gillet  V.  Stanley,  1  Hill,  121.)  What  is  needful  to  be 
done  to  effect  this  object,  has  been  shown  in  another  part  of  this 
treatise. 

Assuming  that  the  vendor  claims  by  descent  from  his  ancestor, 
it  is  important  to  know  that  he  is  a  legitimate  heir  of  the  former 
owner.  This  often  involves  an  inquiry  as  to  the  validity  of  the 
marriage  of  his  parents.  By  the  common  law  of  England  and  this 
country,  marriage  is  considered  in  no  other  light  than  as  a  civil  con- 
tract.    The  holiness  of  the  matrimonial  state  is  left  entirely  to 


TITLE  BT  DEVISE.  541 

ecclesiastical  and  religious  scrutiny.  In  the  catholic  and  some  of 
the  protestant  countries  of  Europe,  it  is  treated  as  a  sacrament. 
{Story's  Confi.  Laws,  §  108.)  The  general  principle  is,  that  be- 
tween persons  sui  juris,  marriage  is  to  be  decided  by  the  law  of 
the  j)lace  where  it  is  celebrated.  If  valid  there,  it  is  valid  every- 
where. If  invalid  there,  it  is  equally  invalid  everywhere.  {Id. 
§  113.)  These  principles,  with  their  qualifications,  will  be  found 
stated,  with  more  or  less  fullness,  by  all  the  elementary  writers. 

The  existence  of  a  marriage,  except  in  actions  for  adultery  and 
indictments  for  bigamy,  is  sufficiently  proved  by  presumptive  evi- 
dence of  cohabitation,  or  even  by  general  reputation.  {Doe  v. 
Fleming,  4  Bing.  266.  Birt  v.  Barlow,  Doug.  171.  Morris, v. 
Miller,  4  Burr.  2057.) 

How  far  a  claim  to  dower  may  be  affected  by  divorce,  by  joint- 
ure, or  a  testamentary  provision  in  her  favor,  and  her  election,  has 
been  sufficiently  shown  in  a  previous  chapter,     {Part  1,  ch.  2,  §  3.) 

If  the  vendor  is  shown  to  be  a  son,  for  example,  of  the  intestate, 
it  will  be  important  to  inquire,  whether  he  had  any  brothers  or 
sisters  who  would  share  with  him  the  inheritance;  and  whether 
they  have  conveyed  their  share  of  the  estate  to  the  vendor,  by  prop- 
er instruments  of  conveyance,  duly  executed  and  acknowledged  or 
proved. 

It  will  also  be  important  to  inquire,  whether  there  are  any  out- 
standing terms  for  years,  created  by  any  of  the  prior  parties,  and 
which  are  still  subsisting.  To  make  a  good  title  in  fee,  they  should 
be  extinguished  by  a  valid  surrender  by  the  tenant,  unless  the  pur- 
chaser is  willing  to  take  the  title  with  that  incumbrance. 

2.  If  the  title  of  the  vendor  was  derived  by  devise,  another  class 
of  questions  arise.  In  addition  to  showing  the  unincumbered  na- 
ture of  the  estate  of  the  devisor  at  the  time  of  his  death,  which  will 
be  done  by  some  of  the  modes  already  pointed  out,  it  will  be  im- 
portant to  inquire  as  to  the  valid  execution  of  the  will  to  pass  real 
estate,  whether  it  has  been  proved  as  a  will  of  real  estate,  and  re- 
corded in  the  proper  surrogate's  court;  whether  the  testator  has 
devised  to  the  vendor  the  fee  simple,  or  what  other  estate  in  the 
property  in  question;  whether,  by  the  terms  of  the  will,  the  testa- 
tor's debts  and  legacies,  or  either  of  them,  have  been  charged  upon 
the  real  estate;  and  whether  there  js  still  any  outstanding  claim 
of  dower,  affecting  the  premises. 

We  have  seen,  under  the  proper  head,  that  a  will  is  revocable. 


542  TITLE  BY  DEtlSE. 

and  have  pointed  out  how  it  may  be  revoked,  and  how  restored  by 
republication.  It  may  become  necessary  to  apply  these  i)rinciple8 
to  an  actual  case. 

The  devise  under  which  the  vendor  claims  may  have  been  upon 
a  condition.  Conditions,  we  have  seen,  are  of  two  kinds,  precedent 
and  subsequent;  and  we  have  pointed  out  the  difference  between  a 
condition  and  a  limitation;  {Port  3,  ch.  10,  §  4;)  and  by  what 
words  the  real  estate  of  the  testator  may  be  charged  with  debts  or 
legacies.  It  will  be  the  duty  of  the  counsel  in  })reparing  the  ab- 
stract to  set  out  such  parts  of  the  will  as  bear  upon  these  questions, 
and  sometimes  an  examination  of  the  whole  instrument  will  be 
nqcessary. 

If  the  will  has  not  been  proved  as  a  will  of  real  estate,  it  should 
be  done  as  a  matter  of  precaution  to  perpetuate  the  evidence  in  re- 
lation to  its  execution,  and  to  prevent  the  heirs  at  law  from  dealing 
with  the  estate.  (1  2L  S.  748,  749,  §  3.  WiUard  on  Ex'rs,  170.) 
Though  the  title,  derived  from  the  will,  may  be  enforced  in  the 
proper  tribunal  without  the  proof  and  recording  it  with  the  surro- 
gate, still  the  latter  proceeding  will  in  general  be  insisted  on  by  ev- 
ery prudent  purchaser. 

When  an  estate  has  been  divided  among  different  owners,  either 
by  descent  or  purchase,  and  the  inquiry  is  made  as  to  the  title  of 
one  only  of  the  present  holders  of  it,  the  absence  of  the  earlier  deeds 
affords  no  suspicion  of  concealment;  and  accounts  in  the  most  sat- 
isfactory manner  for  the  absence  of  the  more  early  deeds.  In  this 
state,  since  the  recording  of  deeds  and  other  conveyances  is  almost 
universal,  there  is  a  ready  mode  of  ascertaining  the  state  of  the 
title  by  a  reference  to  the  public  records.  If  the  seller  cannot  pro- 
duce the  original  deeds  or  wills  under  which  his  title  is  held,  he 
cannot  require  the  purchaser  to  send  round  to  the  different  offices 
to  examine  the  abstract  with  the  originals,  or  with  the  records, 
even  when  that  will  be  permitted  by  the  rules  of  the  office,  although 
the  vendor  is  willing  to  pay  the  expense  of  the  attendances;  but 
he  must  procure  office  copies  or  extracts,  as  the  case  may  require, 
in  order  to  enable  the  purchaser's  solicitor  to  examine  the  abstract 
with  him,  if  it  should  be  deemed  necessary.  (1  Sugd.  Vend.  518, 
§  15,  Perkins'  ed.) 

In  the  case  of  Hughs  v.  Winne,  (8  Sim.  85,)  it  was  held  that 
when  title  deeds  were  in  the  hands  of  persons  residing  in  different 


SPECIFIC  PERFORMANCE.  543 

parts  of  the  country,  the  vendor  must  be  at  the  expense  of  the  pur- 
chaser sending  a  clerk  to  compare  the  abstract  with  the  deeds. 

The  rights  of  the  parties  are  sometimes  regulated  by  the  stipu- 
lations of  the  executory  contract  of  sale.  When  the  seller,  in  the 
conditions  of  sale,  agrees  to  deliver  an  abstract  of  title  and  deduce  a 
good  title,  he  is  bound  to  perform  the  agreement.  If  he  intends  to 
deprive  the  purchaser  of  the  right  to  the  production  of  any  evidence 
necessary  to  verify  the  title  beyond  what  the  title  deeds  in  his  own 
custody  will  supply,  he  is  bound  to  make  that  intention  previously 
kno^NTi  to  the  purchaser  in  clear  and  explicit  terms.  (Southy  v. 
Butt,  2  MijL  &  Or.  207.) 

The  questions  of  this  nature  most  frequently  arise  in  actions  for 
the  specific  performance  of  contracts  for  the  sale  or  purchase  of  real 
estate.  The  court  will  not  decree  a  specific  performance  where  the 
vendor  cannot  make  a  clear  and  undoubted  title  to  the  premises, 
unless  the  purchase  has  been  made  at  the  risk  of  the  vendee  as  to 
the  title,  or  the  latter  has  agreed  to  accept  such  title  as  the  vendor 
was  able  to  give.  In  general,  however,  it  is  not  necessary  for  the 
complainant  to  show  that  he  was  able  to  give  a  good  title  at  the 
time  of  making  the  agreement  to  sell,  or  even  at  the  commencement 
of  the  suit.  It  will  be  sufficient  if  he  can  give  a  perfect  title  at  the 
time  of  the  decree.  {Brown  v.  Huff,  5  Paige,  241.  Langford  v 
Pitt,  2  P.  Wms.  630.  Clute  v.  Bobinson,  2  John.  595.  Coffn  v. 
Cooper,  14  Ves.  205.  Seymour  v.  Delancy,  3  Coiven,  445.  Dutch 
Church  V.  Mott,  7  Paige,  77.)  This,  too,  is  a  good  answer  to  the 
bill  of  the  vendee  to  rescind  the  contract.  For  though  the  vendor 
may  not  have  been  able  to  convey  at  the  time  he  made  the  contract, 
or  at  a  later  day  when  the  vendee  called  for  performance,  yet  if  he 
can  give  a  good  title  at  the  time  of  the  decree,  the  complainant 
must  accept  it;  but  in  that  case  he  will  be  entitled  to  an  equitable 
compensation  for  the  delay.     {Pierce  v.  Nichols,  1  Paige,  244.) 

Equity  sometimes  decrees  the  execution  of  an  agreement,  with  a 
compensation  for  defects.  The  vendor  must  himself,  when  he  seeks 
relief  against  a  vendee,  be  able  to  perform  on  his  part.  A  mere 
trifling,  immaterial  defect,  will  not  defeat  a  decree.  If  the  defend- 
ant obtain  by  a  performance  the  same  title  which  he  expected  to 
obtain  when  he  made  the  contract,  a  performance  will  be  decreed. 
(  Winne  v.  Reynolds,  6  Paige,  407.)  It  was  said  by  the  chancellor 
in  the  last  cited  case,  that  the  reservation  of  a  pepper  corn  rent,  or 


544  TITLE  BY  JUDICIAL  SALE. 

any  thing  else  which  is  merely  nominal,  is  not  an  objection  to  the 
title  which  could  justify  the  court  in  refusing  a  specific  performance, 
even  where  the  defendant  had  contracted  to  purcliase  without  any 
notice  that  such  nominal  rent  was  reserved. 

The  foregoing  observations  show  the  importance  of  care  in  pre- 
paring the  preHminary  contract.  The  vendor  should  not  stipulate 
to  give  any  different  title  from  that  which  it  is  in  his  power  to  con- 
vey; and  the  vendee  should  be  apprised  of  the  nature  of  the  title, 
and  of  its  defects,  if  any,  when  he  completes  the  executory  contract. 
For  although  a  court  of  equity  may  overlook  trifling  defects  which 
have  not  been  enumerated  in  the  contract,  yet  the  existence  of  such 
defects  often  give  rise  to  distressing  litigation,  and  may  affect  the 
question  of  costs,  if  they  be  not  suflficient  to  break  up  the  agree- 
ment  altogether.  Such  controversies  can  be  avoided  by  a  reason- 
able precaution  in  the  beginning. 

Courts  of  equity  do  not  entertain  an  action  for  a  specific  per- 
formance of  a  merely  gratuitous  promise.  It  never  decrees,  specifi- 
cally, a  mere  voluntary  agreement.  {JacTcson  v.  Ashton,  .11  Pet 
229.)  But  in  all  cases  where  specific  performance  of  a  contract 
would  be  granted  between  the  original  parties,  it  will  be  decreed 
between  all  claiming  under  them,  if  there  be  no  intervening  equities 
to  control  the  case.     (Hays  v.  Hall,  4  Porter,  374.) 

Section  IV. 

Of  the  Examination  of  a  Title  acquired  under  a  Judicial  Scde, 
or  Sale  under  a  Power. 

When  a  party  has  acquired  a  title  to  real  estate,  at  a  sale  under 
a  judgment  and  execution;  or  a  sale  of  lands  for  taxes;  or  a  sale 
of  lands  under  an  order  of  the  surrogate,  for  the  payment  of  debts; 
or  the  sale  of  lands  of  infants  or  lunatics  under  the  authority  of 
some  tribunal,  and  is  desirous  of  selling  or  mortgaging  the  same,  his 
abstract  of  title  should  show,  at  least,  in  a  general  way,  the  nature 
of  his  title.  We  have  treated  in  a  previous  chapter,  of  titles  so  ac- 
quired, by  reference  to  which  the  reader  will  discover  what  is  requi- 
site to  a  complete  title,  and  in  what  manner  it  can  be  assailed. 
(See  ante,  p.  445.) 

The  purchaser,  if  apprised  fully  of  the  particulars  of  the  vendor's 
title,  will  regulate  the  price  he  is  to  give  by  the  probable  risk  of  a 
controversy  about  the  subject  of  his  purchase. 


EXAMINING  TITLES.  545 

^  The  points  to  which  the  inquiry  should  be  directed,  in  investigat- 
ing the  vaHdity  of  title  acquired  at  judicial  sales,  are  as  variou^'s  as 
the  nature  and  occasion  of  such  sales. 

If  the  sale  be  by  wtue  of  a  judgment  and  execution,  the  promi- 
nent point  to  be  examined  is  as  to  the  title  of  the  judgment  debtor 
at  the  time  the  judgment  under  which  the  purchase  was  made  be- 
came a  hen  upon  the  land;  that  is,  at  the  time  the  judgment  was 
docketed.     The  mode  of  conducting  that  investigation  has  already 
been  indicated.     It  is  the  same  as  if  the  purchase  was  made  directly 
Irom  him  by  a  deed  of  bargain  and  sale,  and  his  ability  to  give  an 
unincumbered  title  was  in  issue.     Whatever  title  he  had  at  the 
time  of  the  docketing  of  the  judgment  will  pass  to  the  purchaser 
and  may  be  acquired  by  a  redeeming  creditor.     The  judgment  ex- 
ecution and  sheriff's  deed  will  h^  ^prima faeie  sufficient  evidence  of 
title  of  the  party  claiming  under  such  sale.     The  abstract  should 
set  out  not  only  the  deed  but  the  judgment  and  execution.     It  will 
then  be  for  the  other  party  to  show  that  the  judgment  had  been 
paid,  or  that  the  execution  or  judgment  or  both  were  void,  at  the 
time  of  the  sale.     It  will  not  be  enough  to  show  that  the  judgment 
was  erroneous,  or  that  the  execution  was  irregular  merely     A  ref- 
erence to  the  sixth  chapter,  supra,  will  show  what  wiU  be  necessary 
to  defeat  the  title,  and  what  not.  ^ 

In  like  manner,  should  the  title  have  been  acquired  at  a  sale  of 
the  estate  of  infants,  by  order  of  the  court,  or  at  a  sale  of  the  real 
estate  of  a  testator  or  intestate  under  the  order  of  the  surrogate,  the 
jurisdiction  of  the  court,  in  both  cases,  to  make  the  order,  may  be 
disproved,   and  the  sale  thus  shown  to  be  invalid.     Enou-h  has 
been  said  in  the  chapter  already  referred  to,  on  the  subject  of  this 
class  of  sales   to  enable  the  party  who  sustains,  as  well  as  the  party 
who  assails  them,  to  understand  the  principles  on  which  they  rest 
So,  also  should  the  title  be  derived  from  a  sale  under  a  power  of 
attorney,  the  power  itself  must  be  produced  or  accounted  for,  and 
It  must  appear  that  he  who  granted  the  power  had  the  right  to 
do    he  act  which  the  trustee  is  sought  to  be  empowered  to  do 
{Sddenv    Verrmlyea,  3  Comst.  525.)     These  powers  are  frequently 
conferred  on  an  executor  by  the  will  of  the  testator.     They  are  a 
trust  and  confidence  which  cannot  be  delegated.     (Berger  v  JDnf 
4JoknCk.S68.)     They  must  be  strictly%rsued     And  a  powf;. 
given  to  an  executor  cannot  be  executed  by  an  administrator  with 
the  mil  annexed.     (ConkUn  v.  Fgerton,  21  Wend.  430  ) 
Will. — 35 


546  EIGHT  OF  PURCHASER  TO  ORIGINAL  DEEDS. 

A  title  derived  from  a  sale  of  lands  for  taxes,  is  often  rendered 
invalid  by  matter  deliors  the  deed  of  the  comptroller.  It  is  of  no 
validity,  if  the  taxes  were  in  fact  paid  to  the  collector,  before  the 
sale.  (Jackson  v.  Morse,  18  John.  441.)  Under  the  re^^sed  stat- 
utes, the  comptroller's  deed  will  not  pass  title  to  any  portion  of  the 
premises,  if  a  single  foot  of  it  be  actually  occupied  at  the  time,  un- 
less the  title  be  perfected  by  the  notice,  default  to  redeem,  and  the 
proof  thereof  to  the  comptroller,  and  his  certificate.  {Burt  v.  Da- 
vison, 16  Wend.  550.  Leland  v.  Bennett,  5  Hill,  286.  Smith  v. 
Sanger,  3  Barh.  360.) 

The  reader  is  referred  to  the  seventh  chapter,  part  three,  already 
cited,  for  the  rules  of  law  applicable  to  the  alienation  of  real  estate 
by  the  order  or  permission  of  some  tribunal  or  public  officer.  He 
will  there  see  what  circumstances  are  essential  to  a  valid  transfer  of 
property,  and  how  far  the  title  may  be  afiected  by  irregularities. 
It  is  not  deemed  expedient  to  pursue  this  branch  of  the  subject 
further,  in  this  connection. 

Section  V. 

Of  the  Right  ivhich  a  Purchaser  has  to  the  Original  Deeds,  and  of 
Covenants  for  their  Production. 

It  was  held,  in  Lord  Burkhurst's  case,  (1  Co.  2,)  that  if  a  man 
seised  of  lands  in  fee  simple,  and  having  divers  evidences  and  char- 
ters, some  containing  warranty,  and  some  not,  conveys  the  land 
over  to  another  without  any  warranty  upon  which  he  may  be  vouch- 
ed, the  purchaser  shall  have  all  the  charters  and  evidences,  as  well 
those  which  comprehend  the  warranty,  as  the  others;  for  inasmuch 
as  the  feoffor  had  conveyed  over  all  his  estate  in  the  land  absolute- 
ly, and  is  not  bound  to  warrant  the  land,  so  that  he  cannot  be 
vouched  to  warranty,  and  to  render  the  value,  but  the  feoffee  is  to 
defend  the  land  at  his  peril;  it  is  therefore  reasonable  that  the  fe- 
offee, for  his  better  defense,  shall  have  all  the  charters  and  eviden- 
ces as  incident  to  the  land,  although  they  be  not  granted  to  him 
by  express  words ;  and  that  the  feoffor  shall  not  have  them,  because 
he  can  receive  no  benefit  by  keeping  them,  nor  sustain  any  damage 
by  delivering  them. 

But  where  a  man  conveyed  with  warranty,  he  had  a  right  (unless 
there  was  an  express  grant  of  the  deeds)  to  retain  all  evidences 
which  contain  warranty,  or  serve  to  protect  the  warranty  para- 


POSSESSION  OF  TITLE  DEEDS.  547 

mount,  or  to  maintain  the  title  of  the  land;  but  not  such  as  con- 
cern the  possession.  So  where  a  conveyance  was  made  with  a  war- 
ranty against  the  grantor  and  his  heirs  only,  the  purchaser  was 
entitled  to  the  deeds  without  an  express  grant  of  them;  for,  as  he 
could  not  recover  in  value  upon  this  warranty  in  case  of  eviction 
by  a  stranger,  the  defense  of  the  title  was  at  his  peril.  (1  Coke 
Litt.  6  a.) 

This  doctrine  was  made  subservient  to  the  interests  of  the  parties. 
If  a  man  enfeoffed  two,  to  them  and  their  heirs,  and  gave  the  an- 
cient charters  to  one  of  them  and  he  died,  the  survivor  should  have 
all  the  charters,  and  not  his  heir,  to  whom  the  gift  was  made;  for 
he  could  sustain  no  loss  from  the  want  of  them,  nor  receive  'any 
benefit  by  them  if  he  had  them;  but  it  is  otherwise  of  the  survivor; 
and  he  should  have  them  as  things  which  went  with  the  land. 
These  principles  owed  their  origin  to  the  doctrine  of  warranty; 
'  but  though  that  has  gone  into  disuse  in  England,  and  has  been 
abolished  in  this  state,  these  principles  continue  substantially  the 
same.     The  title  deeds  are  things  which  go  with  the  inheritance, 
descend  with  it,  and  pass  with  it  by  conveyance  without  beino^ 
named.     (1  Sugd.   Vend.  523,  Perk.  ed.     Austin  v.   Croome    1 
Carr.  &  Marsh.  G53.     3  Ves.jun.  226.)  ' 

There  can  be  no  doubt  in  the  application  of  these  principles  to 
modem  conveyancing,  that  where  a  man  conveys  the  whole  lot  of 
which  he  has  the  title,  by  a  conveyance  in  fee,  without  any  cove- 
nants of  warranty,  the  title  deeds  should  be  given  to  the  grantee, 
as  an  incident  to  the  grant.  The  grantor  has  no  longer  any  interest 
in  them;  but  they  may  be  of  essential  value  to  the  grantee,  to  pro- 
tect his  title  against  adverse  claimants. 

But  where  a  man  sells  only  a  part  of  the  estate,  and  retains  the 
balance  himself,  the  purchaser  is  not  entitled,  as  an  incident  of  the 
grant,  to  the  possession  of  the  deeds,  unless  they  are  expressly 
granted  to  him  by  the  terms  of  the  deed.  {Yea  w.  Field  2  Term 
Bep.  708.)  ' 

So  where  lands  held  under  one  title  are  sold  to  two  or  more  per- 
sons, in  separate  parcels,  the  deeds,  at  common  law,  are  usually 
granted  to  him  who  takes  the  largest  part;  but  in  all  cases  where 
a  person  cannot  obtain  the  evidences,  he  is  entitled,  at  the  expense 
of  the  vendor,  unless  it  is  stipulated  expressly  to  the  contrary  to 
attested  copies  of  all  such  as  are  not  of  record.  {BougUon  v  Jew- 
ell, 15  Ves.  176.     Dare  v.  Tucker,  6  id.  460.)     He  is  also  entitled 


-^48  RECORDING  DEEDS. 

to  a  covenant  from  the  vendor,  or  the  person  having  the  larger  part 
of  the  estate,  to  produce  the  deeds  themselves,  in  order  that  the 
purchaser  may  be  enabled  to  defend  his  title  and  possession.  Al- 
though the  purchaser  of  part  of  the  estate  takes  such  a  covenant 
for  the  production  of  the  deeds,  yet,  if  he  afterwards  obtain  posses- 
sion of  them,  no  person  can  recover  them  from  him  who  has  not  a 
better  right  to  them  than  he  has.     (  Yea  v.  Field,  supra.) 

There  is  great  inconvenience  in  having  the  title-deeds,  says  Lord 
St.  Leonards,  (1  Sug.  Vend.  526,  Perk,  ec/.,)  in  the  hands  of  a  sel- 
ler who  has  parted  with  the  whole  of  the  property,  although  he  has 
covenanted  to  produce  them,  for  the  obligation  is  soon  forgotten  or 
disregarded,  and  the  deeds  accordingly  are  in  danger  of  being  neg- 
lected or  destroyed,  unless  by  being  sometimes  called  for,  they  pro- 
duce emolument  in  the  hands  of  a  solicitor. 

The  statute  relative  to  the  recording  of  conveyances  has  relieved 
our  conveyancers  from  some  embarrassments  which  formerly  exist- 
ed. The  revised  statutes  of  1830  require  that  all  conveyances  of 
real  estate  wnthin  this  state,  thereafter  made,  shall  be  recorded  in 
the  office  of  the  clerk  of  the  county  where  the  land  is  situated,  and 
when  not  so  recorded,  they  are  declared  to  be  void  as  against  any 
subsequent  purchaser  in  good  faith,  and  for  a  valuable  considera- 
tion, of  the  same  real  estate,  or  any  portion  thereof,  whose  convey- 
ance shall  be  first  duly  recorded.  (1  B.  S.  756,  §  1.)  This  statute 
is  a  mere  revision  of  the  act  of  1788,  and  the  subsequent  enact- 
ments on  the  same  subject.  (2  Greenleaf,  99.  \  K.  &  R.  478. 
1  B.  L.  369.)  An  unrecorded  deed  has  always  been  good,  and  still 
is  valid  against  the  grantor  and  his  heirs.  {Jackson  v.  West,  10 
John.  466,  per  Kent,  Ch.  J.)  The  present  statute  is  mandatory  as 
to  all  deeds  thereafter  made,  and  it  holds  out  inducements  to  the 
recording  of  them  which  practically  makes  the  usage  of  recording 
universal.  A  transcript  of  a  duly  recorded  deed  is  an  original  by 
statute  for  all  the  purposes  of  pleading  and  proof.  (1  B.  S.  759, 
§  17.  Clark  v.  Nixon,  5  Hill,  36.  Dumfrey  v.  Tyler,  3  Duer, 
73,  95,) 

It  would  seem,  in  this  state,  that  a  covenant  to  produce  the  orig  - 
inal  deeds  cannot  be  necessary  in  any  case.  If  the  deed  has  not 
already  been  recorded,  the  purchaser  will  doubtless  insist  on  its  be- 
ing recorded  at  the  expense  of  the  vendor,  in  the  proper  county,  if 
it  has  been  duly  proved  or  acknowledged;  and  in  cases  which  re- 


RECORDING  WILLS.  549 

quire  it,  deposited  in  the  same  office,  for  the  inspection  of  all  per- 
sons desiring  to  examine  the  same.     (1  R.  S.  761,  §§  30-32.) 

A  deed  duly  acknowledged  is  evidence,  not  only  of  a  transfer  of 
the  title,  but  of  the  covenants  contained  in  it.  {Morris  v.  Wads- 
loorth,  17  Wend.  103.)  In  order  to  be  evidence,  the  transcript  of 
the  record  must  include  the  whole  of  it— that  is,  the  record  of  the 
proof  or  acknowledgment  as  well  as  of  the  deed  itself.  {Per  Bran- 
son, J.  in  Morris  v.  Keyes,  1  Hill,  540.) 

The  counsel  for  the  purchaser  will  see  that  the  deeds  under 
which  the  grantor  derives  his  title  have  been  legally  proved  or  ac- 
knowledged, and  recorded  in  the  proper  county.  The  custody  of 
the  originals  becomes  then  a  matter  of  subordinate  importance; 
but  I  believe  it  is  usual,  when  the  whole  land  covered  by  the  deed 
is  conveyed,  without  covenants,  to  deliver  to  the  grantee  the  muni- 
ments of  the  grantor's  title.  But  when  a  grantor  conveys  with 
covenant  of  seisin,  he  is  not  bound  to  deliver  the  title  deeds  to  the 
grantee.  {Ahhott  v.  Allen,  14  John.  248.)  And  the  learned  judge 
who  delivered  the  opinion  of  the  court  in  the  last  case,  expressed 
the  opmion  that  the  grantor,  who  had  given  a  covenant  for  quiet 
enjoyment  and  general  warranty,  is  in  the  same  condition,  and  may 
retam  in  his  own  hands  the  evidences  of  his  title. 

This  rule  is  not  therefore  confined  to  covenants  which  run  with 
the  land,  as  a  warranty,  but  extends  to  such  as  do  not,  as  the  cove- 
nant of  seisin,  and  the  power  to  convey,  and  the  covenant  against 
mcumbrances,  which  are  broken  the  moment  they  are  made 
{Greenly  v.  Wilcox,  2  John.  1.  Dimmick  v.  Lochioood,  10  Wend. 
Rep.  142.) 

The  same  principles  are  applicable  to  cases  where  the  title  is  de- 
rived by  devise.  The  devisee  is  not,  by  virtue  of  his  devise,  entitled 
to  the  custody  of  the  will,  or  of  any  certificate  or  other  muniment 
of  title  from  the  executors  or  the  heu'.  He  is  entitled  to  have  the 
will,  under  which  he  derives  his  title,  proved  in  the  proper  court 
as  a  will  of  real  estate,  and  recorded  with  the  proofs  thereof,  in  the 
book  pro^^ded  for  that  purpose.  He  has  a  right  to  institute  that 
proceeding  himself  against  the  heirs,  executors  or  other  parties 
having  an  interest  in  the  question;  and  can  thus  have  the  validity 
oi  the  will  established  by  judicial  authority.  {L.  of  1837,  cli.  460, 
§  4.     3  ^.  8.  146,  bth  ed.      Willard  on  Executors,  167-174  ) 

The  exemplification  of  the  will  alone,  without  the  proofs,  cannot 
be  received  in  evidence.     The  whole  record,  including  the  proofs 


550  TITLE  BY  ADVERSE  HOLDING. 

must  be  certified.  The  record  itself  is  made  evidence,  and  this  the 
court  say  includes  the  proof  as  well  as  the  will.  The  transcript  of 
"the  record,  certified  by  the  proper  officer  and  sealed  with  the  seal 
of  the  court,  is  also  as  effectual  as  the  original  will  W(juld  be  if 
produced,     {Morris  v.  Keyes,  supra.) 

But  though  the  record  and  the  transcript  thereof  are  both  made 
legal  evidence,  they  are  not  conclusive,  but  only  prima  facie  evi- 
dence of  the  authenticity  of  the  will  in  the  one  case,  and  of  the  deed 
in  the  other.  The  instrument  may  still  be  assailed  by  contrary 
proof.  {Id.  Jackson  v.  Rumsey,  3  John.  Cases,  234.  2  R.  S. 
58,  §  15.) 

It  is  not  usual  in  this  state  to  insist  on  a  covenant  from  the 
vendor  to  produce  the  original  deeds  or  will,  when  the  same  have 
been  recorded.  Such  requirement  would  be  vexatious  to  the  one 
party,  without  being  attended  with  any  benefit  to  the  other. 

A  good  title  may  sometimes  be  made  to  an  estate,  although  the 
origin  cannot  be  shown  by  any  deed  or  will.  But  it  must  be  shown 
that  there  has  been  such  a  long,  uninterrupted  possession,  enjoy- 
ment and  dealing  with  the  property,  as  afford  a  reasonable  pre- 
sumption that  there  is  an  absolute  title  in  fee  simple.  (Cottrel  v. 
Watbins,  1  Mason,  363.) 

In  many  of  the  cases,  when  a  title  has  become  perfect  by  adverse 
enjoyment,  the  owner  can  show  no  documentary  e\adence  which 
would  in  the  beginning  have  been  accepted  by  a  purchaser  as  a  valid 
title.  The  acquiescence  of  all  adverse  claimants  is  presumed  by 
lapse  of  time.  The  increased  value  of  the  property,  by  the  growth 
of  the  country  or  the  industry  of  the  occupant,  are  constantly 
strengthening  a  title,  which  perhaps  began  in  wrong;  until  at  length 
it  ripens  into  a  right.  The  statute  of  limitations,  as  well  as  the 
principles  on  which  the  doctrine  of  title  by  adverse  enjoyment  rests, 
is  founded  in  wisdom.  And  it  may  be  doubted  whether  society 
could  continue  to  prosper  without  it.  It  imparts  to  good  faith  and 
honest  industry  a  promise  of  protection;  and  thus  holds  out  induce- 
ments to  make  improvements  which  would  otherwise  be  neglected. 
{See  ante,  pp.  351,  352.) 


FORM  OF  ABSTRACT.  55^ 


Section  VI. 

Of  the  Form,  Arrangement  and  Substance  of  the  Abstract. 

The  form  of  the  abstract  has  reference  not  only  to  its  mechanical 
execution,  but  the  lucid  arrangement  of  its  diflPerent  parts.     As  the 
object  is  to  communicate  accurate  information  on  the  subject  of  the 
title  under  investigation,  it  should  be  so  made  as  to  be  easily  ex- 
ammed,  and  readily  understood.     It  should  be  drawn  or  engrossed 
m  a  fair  hand,  on  good  paper,  so  that  no  time  need  be  wasted  in 
deciphenng  its  meaning,  or  arranging  the  order  in  which  the  differ- 
ent parts  are  stated.     The  parts  of  the  deed,  or  will,  under  whi^h 
the  title  18  claimed,  should  be  stated  truly,  and  in  the  langua-e  of 
the  instrument  abstracted.     The  Unes  should  be  sufficiently^open 
to  give  room  for  interlineations  if  need  be,  and  the  marc^in  suffi- 
ciently  broad  to  admit  of  notes  of  inquiry  by  the  counsel  who  is 
employed  to  examine  it  and  investigate  the  title.     If  the  title  be 
comphcated,  the  counsel  will  need  the  whole  powers  of  his  mind   to 
combine  the  different  parts,  and  to  bring  him  to  a  safe  result 
bometimes  the  abstract  is  accompanied  with  full  copies  of  the  deeds 
aiid  wills  under  which  it  is  derived.     In  some  cases  it  is  presumed 
tha  such  copies  may  be  important;  but  if  the  abstract  be  faithfully 
made,  they  will  not  be  indispensable. 

Every  abstract  should  have  a  head  or  title.  It  should  disclose 
the  name  oi  the  person  whose  title  is  to  be  considered,  the  interest 
he  has  in  it,  the  lands  to  which  attention  is  to  be  directed,  the  name 
ol  the  town  and  county  in  which  it  is  situated,  and  if  there  is  any 
difference  between  the  ancient  description  of  it,  and  that  by  which 
It  IS  now  known  the  abstract  should  so  connect  the  two  as  to  show 
the  identity  of  them. 

The  form  given  by  Mr.  Preston  in  his  treatise,  (1  Prest  on  Abs 
36,)  may  be  adopted  by  so  varying  the  phraseology  as  to  conform 
to  our  style  of  description. 

It  may  be  to  this  effect:  "An  abstract  of  the  title  of  A  B  to 
the  fee  simple  or  inheritance  of  a  farm  of  160  acres  of  land,  'in  the 
town  of  Saratoga  Springs,  in  the  county  of  Saratoga  and  state  of 
New  York,  being  in  the  allotment  of  the  patent  of  Kayade- 

rosseras,  so  called."  ^'^j'ciue 


552  FOR^I  OF  ABSTRACT. 

The  heading  of  the  abstract  sliould  be  varied  in  point  of  fonn, 
as  circumstances  may  require;  thus  directing  the  attention  to  those 
points  which  are  most  material  and  prominent. 

The  abstract  is  like  a  brief  of  facts  prepared  by  counsel  for  the 
trial  of  a  cause,  the  object  of  which  is  to  establish  or  defend  the 
title.  In  the  case  where  lands  are  situated  in  an  old  patent  grant- 
ed more  than  a  hundred  years  ago,  it  is  unnecessary  and  perhaps 
unwise,  to  begin  the  abstract  with  the  granting  of  the  patent,  by 
the  colonial  government,  and  then  to  trace  the  title  under  examin- 
ation through  the  partition  of  the  patent  among  the  original  pat- 
entees, and  the  subsequent  conveyances  by  deed  or  will,  or  descents, 
to  the  party  whose  title  is  under  examination.  If  the  party  from 
whom  he  purchased,  or  those  under  whom  he  claimed,  had  been  in 
the  peaceable  and  quiet  possession  of  the  premises,  claiming  as^ 
owner  for  many  years  before — twenty,  thirty,  or  forty,  as  the  case 
may  be — that  fact  should  be  stated. 

It  may  be  stated  thus  :  C.  D.  under  whom  the  said  A.  B.  de- 
rives title,  went  into  possession  of  the  premises  in  question  in  1820, 
under  a  deed  in  fee  simple  from  E.  F.,  who  claimed  to  be,  and  w^as 
believed  to  be,  the  owner  thereof  The  deed  of  E.  F.,  in  which  his 
wife  joined,  to  the  said  C.  D.,  was  dati^d  the  1st  A})ril,  1820,  pur- 
ports to  be  for  the  consideration  of  1000  dollars  in  hand  paid,  and 
"  grants,  bargains,  sells,"  &c.,  (using  the  granting  words  of  the 
deed,)  the  premises  in  question  to  the  said  C.  D.,  his  heirs  and  as- 
signs forever.  It  contains  the  usual  covenant  of  warranty  ;  (state 
what  the  covenants  were ;)  it  was  duly  acknowledged  by  the  grant- 
or, and  his  wife  on  a  private  examination  apart  from  her  husband; 
and  was  recorded  in  the  clerk's  office  of  Saratoga  county  on  &c.  in 

book  of  deeds  letter  __  &c.  page The  said  C.  ©.immediately 

afterwards  entered  into  the  possession  of  the  said  premises  under 
the  said  deed,  erected  fences  and  buildings  on  the  premises,  and  im- 
proved the  farm,  claiming  it  as  owner  until  the  year  1845,  when, 
for  the  consideration  of  4000  dollars,  he  sold  the  same  to  the  said 
A.  B.  in  fee  simple,  by  a  deed  executed  and  acknowledged  by  him- 
self and  wife,  bearing  date  1  March,  1845,  by  which  for  the  said 
consideration  of  4000  to  him  in  hand  paid,  they  "  granted,  bargain- 
ed, sold,"  (follow  the  language  of  the  deed,)  the  said  described 
premises  to  the  said  A.  B.  his  heirs  and  assigns  forever.     The  deed 


FORM  OF  ABSTRACT.  553 

contains  the  following  covenants  of  title,  (setting  tliem  out,)  and 
is  recorded,  (state  where  and  when.) 

The  said  A.  B.,  immediately  after  the  delivery  of  the  said  deed, 
entered  into  the  possession  of  the  said  premises  under  said  deed, 
and  has  continued  ever  since  in  the  peaceable  and  quiet  possession 
thereof  as  owner,  cultivating  the  farm,  and  otherwise  improving 
the  said  premises. 

The  certificate  of  the  county  clerk  of  the  county  of  Saratoga 
shows  that  he  has  searched  the  docket  of  judgments  in  his  office  for 
the  last  ten  years,  and  finds  no  judgment  now  in  force  against  the 
said  A.  B. ;  and  that  he  has  searched  the  record  of  mortgages  for 
the  last  twenty  years,  and  he  finds  no  mortgage  either  against  the 
said  A.  B.  or  the  said  C.  D. 

The  foregoing  makes  as  clear  a  title  as  is  usually  conveyed  in  the 
country.  If  the  purchaser  is  dissatisfied  with  it,  he  should  point  out 
the  defects,  so  as  to  give  the  vendor  an  opportunity  to  explain  or 
remove  them.  If,  for  example,  the  vendor  had  been  town  collector, 
or  a  surety  for  such  collector,  the  purchaser  might  require  a  certifi  - 
cate  from  the  clerk  that  the  docket  of  the  collector's  bond  had  been 
discharged.  {Ch.  II,  p.  535.)  So  also  with  regard  to  other  pos- 
sible liens,  for  taxes,  or  the  like,  the  purchaser  might  make  inqui- 
ries and  protect  himself  by  proper  covenants. 

The  foregoing  abstract  will  serve  only  to  show,  in  a  general  way, 
how  it  should  be  prepared. 

But  there  will  often  be  incumbrances  to  be  removed.  There  may 
have  been  many  transfers  of  the  property.  To  some  of  the  deeds  - 
the  wife  of  the  grantor  may  not  have  been  a  party,  thus  leaving  the 
lands  liable  to  a  contingent  right  of  dower.  Some  of  the  changes 
may  have  been  occasioned  by  a  devise.  It  may  be  important  to  see 
whether  the  will  was  properly  executed  to  pass  real  estate;  whether 
it  has  been  proved  and  recorded  in  the  proper  office;  whether  it 
chp.rged  the  payment  of  debts  or  legacies  on  the  real  estate  of  the 
testator,  and  whether  those  debts  and  legacies  have  been  paid; 
whether  there  is  any  contingent  right  of  dower  or  curtesy  in  the 
land  or  in  any  part  of  it. 

The  title  to  some  of  the  parties  may  be  derived  by  descent  from 
a  remote  ancestor.  In  this  case  it  may  be  necessary  to  accompany 
the  abstract  with  a  pedigree,  duly  authenticated.  In  the  case  of 
ancient  titles  this  is  sometimes  attended  with  difficulty.  We  have 
only  to  look  into  our  reports  to  see  cases  where  titles  have  been 


554  OBJECT  OF  ABSTRACT. 

traced  back  for  more  than  a  century,  to  witness  the  draft  upon  tlie 
ingenuity  and  skill  of  the  counsel  who  is  employed  in  the  investi- 
gation.''' 

Conveyancing  is  both  a  theory  and  an  art.  The  theory  has  ref- 
erence to  the  knowledge  of  the  doctrine  of  estates,  the  quantity  and 
quality  of  the  interest  which  a  vendor  may  have  at  a  given  time, 
and  his  right  to  alien  the  same.  To  acquire  this  theory,  the  stu- 
dent should  make  himself  fomiliar  with  the  law  of  real  property  as 
it  existed  in  this  state  before  the  revolution,  when  a  large  portion 
of  our  great  estates  had  their  origin,  the  changes  which  have  been 
from  time  to  time  introduced  by  the  legislature,  and  the  present 
state  of  the  law,  both  of  descent  and  purchase. 

The  first  changes  which  were  introduced  after  the  revolution 
were  the  converting  of  estates  tail  into  estates  in  fee  simple,  and 
abolishing  the  law  of  primogeniture.  These  led  to  subordinate 
changes,  which  have  been  noticed  in  the  foregoing  work.  But  still 
greater  changes  in  our  legal  polity  were  wrought  by  the  revised 
statutes  of  1830;  some  of  which  were  merely  formal,  and  others 
radical  in  their  character.  Many  principles  in  the  law  of  trusts,  for 
example,  which  were  well  settled,  have  been  entirely  subverted; 
and  new  rules  have  been  adopted,  the  practical  operation  of  which 
has  not  yet  been  fully  settled  by  the  courts.  In  the  preceding  chap- 
ters we  have  endeavored  to  state  the  existing  law  of  this  state,  as  it 
was  enacted  by  our  legislature  and  expounded  by  our  judicial  decis- 
ions. A  competent  knowledge  of  the  law  in  these  respects  is  indis- 
pensable to  the  theory  of  conveyancing. 

But  conveyancing  is  not  only  a  theory  but  an  art.  The  art  con- 
sists in  the  proper  application  of  the  principles  to  the  actual  affiiirs 
of  life.  When  a  man  is  about  to  convey  a  farm  to  another,  or  to 
mortgage  it  as  security  for  a  loan  or  a  debt,  the  natural  inquiry 
which  will  first  be  made  is  as  to  the  quantity  and  quality  of  interest 
which  he  has  in  the  property  which  he  proposes  to  alien.     The  first, 

*  The  Livingston  and  the  Van  Rensselaer  manors,  the  Hardenbergh  and  the  Kaya- 
derosseras  patents,  have  each,  in  turn,  furnished  examples  of  the  various  points  which 
may  arise  in  deducing  titles  from  the  remote  patentees.  These  patents  embraced 
large  tracts  of  land,  and  were  issued  by  the  colonial  government  in  the  early  part  of 
the  last  century.  Numerous  other  of  the  old  colonial  patents  have  not  been  less  pro- 
lific in  affording  subjects  of  litigation.  {The  People  v.  Van  Rensselaer,  b  Seld,2^\, 
will  show  the  deduction  of  title  in  the  defendants  as  against  the  state.  Papers  in  relor- 
iion  to  the  Livingston  patent  will  be  found  in  3  vol.  Doc.  His.  N.  F.,  611  et  seq.  Jack- 
son V.  France,  10  John.  428,  as  to  a  title  under  the  Hardenbergh  patent.') 


OBJECT  OF  ABSTRACT.  555 

that  is,  the  quantity  of  interest,  has  reference  to  the  time  of  its  con- 
tinuance; as  whether  it  is  an  estate  in  fee  simple,  for  life  or  for  years; 
an  estate  at  will,  or  only  at  sufferance.  The  second,  that  is,  the  quality 
of  the  estate,  has  reference  to  the  time  when  the  right  of  enjoyment 
will  commence,  or  rather  whether  it  is  an  estate  in  possession,  or  in 
expectancy,  as  a  remainder  or  reversion;  and  to  the  number  and 
connection  of  the  tenants,  as  whether  it  is  an  estate  in  severalty, 
joint  tenancy  or  in  common.  These  subjects  have  been  treated  in 
their  proper  place.  It  is  obvious  that  these  points  must  be  settled 
before  the  conveyancer  can  determine  on  the  appropriate  form  of 
conveyance,  and  the  proper  covenants  to  be  insisted  on  by  a  pur- 
chaser, or  to  be  granted  by  the  vendor. 

For  example,  if  the  grantor  has  not  alone  the  right  of  alienation 
but  only  in  conjunction  with  others,  who  are  co-tenants  with  him; 
if  he  has  only  an  estate  for  life  or  years,  and  another  has  the  re- 
mainder or  reversion  in  fee;  if  a  husband  is  seised  only  in  right  of 
his  wife;  in  all  these  cases,  it  will  readily  occur  to  the  counsel  that 
the  proposed  grantor  can  only  transfer  to  another  such  estate  as  he 
has  in  himself  individually;  and  that  to  alien  the  fee  simple,  he 
must  procure  the  concurrence  of  his  co-tenants,  the  remainderman 
or  reversioner,  and  in  the»last  case  of  his  wife,  to  unite  with  him  in 
the  conveyance.  Indeed,  in  all  cases  where  a  man  parts  with  an 
estate  of  inheritance,  intending  to  give  a  fee  simple  absolute,  with- 
out incumbrances,  his  wife  should  be  a  party  with  him  to  the  con- 
veyance, and  should  make  the  requisite  acknowledgment,  (Gillef 
V.  Stanley,  1  Hill,  121.) 

If  the  tenant  for  life  sells  to  a  stranger  in  point  of  estate,  the 
deed  can  operate  only  to  pass  his  own  interest,  and  will  make  his 
grantee  a  tenant  j^ur  auter  vie.  Although  the  grantor  thus  trans- 
fers to  another  an  estate  for  the  life  of  the  grantor,  it  becomes,  in 
the  hands  of  the  grantee,  by  operation  of  law,  an  estate,  not  for 
the  life  of  the  grantee,  but  of  the  grantor.  It  is  of  less  value  to 
the  grantee,  in  point  of  interest,  than  it  was  to  the  grantor.  But 
if  the  conveyance  of  tenant  for  life  be  to  him  who  has  the  imme- 
diate estate  in  remainder  or  reversion,  the  operation  of  the  deed  is 
a  surrender,  and  thus  the  whole  fee  simple  is  vested  in  the  grantee. 

Suppose  an  estate  for  years  be  desired  to  be  created  by  a  party 
who  has  only  an  estate  for  his  own  life.  A  lease  for  years  by  the 
tenant  for  life  does  not  give  a  certain  continuance  of  the  estate, 
since  it  must  be  determined  by  the  death  of  the  lessor.     But  if  he 


556        nUTY  OF  COUNSEL  AS  TO  ABSTRACT. 

who  owns  the  remainder  in  fee  joins  in  the  lease  to  the  tenant  for 
years,  this  lease  becomes  during  the  continuance  of  the  life  estate, 
the  lease  of  the  tenant  for  life  and  tlie  confirmation  of  the  remain- 
deniian.  But  after  the  determination  of  the  life  estate,  the  lease 
becomes,  in  construction  of  law,  tlie  lease  of  the  remainderman,  and 
the  confirmation  of  the  tenant  for  life. 

If  the  estate  is  derived  by  devise  or  descent,  and  the  will,  in  the 
first  case,  does  not  charge  the  estate  with  the  payment  of  debts  or 
legacies,  still  in  both  cases,  under  the  operation  of  our  laws,  the 
real  estate  of  the  testator  or  intestate  may  be  reached  through  the 
intervention  of  the  surrogate's  court,  for  the  payment  of  the  debts 
of  the  testator  or  intestate,  on  the  insufficiency  of  the  personal  as- 
sets, if  the  application  be  made  within  three  years  from  the  date  of 
the  letters  testamentary  or  of  administration.  (See  Will,  on  Ez'rSj 
306  et  seq.  2  R.  S.  100.  3  id.  186  ct  seq.  5fh  cd.)  The  effect  of 
this  statute  regulation  is  to  create  a  quasi  lien  on  the  real  estate 
of  the  deceased,  in  favor  of  creditors  at  large,  for  a  certain  defined 
period.  The  existence  of  such  power  will  suggest  to  the  purchaser 
of  estates  derived  by  inheritance  or  by  devise,  the  necessity  of  ascer- 
taining from  the  surrogate's  office,  or  other  sources  of  information, 
whether  the  accounts  of  the  administration  of  the  estate  have  been 
closed  or  not;  and  whether  any  and  what  debts  exist  against  the  es- 
tate. The  covenant  against  incumbrances  should,  in  the  case  of  a 
title  so  derived,  be  drawn  in  such  a  manner  as  to  protect  the  pur- 
chaser against  the  claims  of  the  creditors  of  the  estate,  which  may 
be  enforced  against  the  real  estate  of  the  deceased. 

It  is  the  duty  of  the  counsel  of  the  purchaser  to  examine  the  ab- 
stract, and  compare  it  with  the  several  documents  referred  to  in  it. 
He  should  see  not  only  that  the  abstract  has  been  truly  made  from 
the  deeds  or  wills,  under  which  the  title  is  derived,  but  should  as- 
certain by  an  examination  of  the  whole  instrument  that  there  is  no 
proviso,  or  limitation  over,  which  qualifies  or  restricts  the  portion 
of  the  instrument  abstracted.  And  the  description  of  the  parties, 
or  an  exception  in  the  operative  part  of  the  deed,  or  frequently  in 
the  covenants  for  title,  sometimes  points  to  incumbrances  or  settle- 
ments which  have  not  been  disclosed.  In  the  case  of  wills,  partic- 
ularly, the  counsel  is  bound  to  read  through  the  whole  will.  Upon 
him  devolves  the  duty  of  seeing  that  the  evidence  is  what  it  pur- 
ports to  be,  and  that  the  deeds  and  wills  are  duly  executed  and  re- 
corded.    (1  Sugd.  Ven.  505,  506,  Perkins'  ed.) 


NOTICE  TO  THE  ATTOENET.  557 

Lord  Hardwicke,  at  an  early  day,  laid  it  down,  "that  even  if  an 
attorney  of  a  vendor  of  an  estate,  knowing  of  incumbrances  thereon, 
treat  for  his  chent  in  the  sale  thereof,  without  disclosing  them  to 
the  purchaser  or  contractor,  knowing  him  a  stranger  thereto,  but 
represents  ,t  so  as  to  induce  a  buyer  to  trust  his  money  upon  it  a 
remedy  lies  against  him  in  equity;  to  which  principle  it  is  necessary 
for  the  court    0  adhere,  to  preserve  integrity  and  fair  dealing  be- 
tween man  and  man;  most  transactions  being  by  the  intervention 
of  an  attorney  or  solicitor."     Lord  St.  Leonards,  adopting  the  above, 
adds,  that  It  seems  clear  that  relief  may  now  be  obtained  at  law 
And  he  says  that  the  same  observation  applies,  and  indeed  «-ith 
much  greater  force,  to  the  attorney  or  agent  of  the  purchaser      It 
can  seldom  happen  that  the  attorney  or  agent  of  the  purchaser  is 
conusant  of  any  incumbrance  on  the  estate  intended  to  be  pur- 
chased unless  he  be  employed  by  both  parties;  which  the  same 
person  frequently  is  to  avoid  expense.     (1  Sugd.  Ven.  8,  Perk  ed  ) 
This  practice  prevails  to  a  great  extent  in  this  state;  and  in  small 
transactions  in  the  country  is  almost  unavoidable.     It  is  a  practice 
discountenaneed  by  the  courts  in  England;  and  is  often  prodncfe 
ot  the  most  serious  consequences.     (Id.     6  Ves.  631,  note.)     U 
would  doubtless  be  discountenanced  here.     It  often  happens,  that 
^    e  are  incumbrances  on  an  estate  which  can  be  sustained  in 

legal  estate,  unless  he  had  notice  of  them  previously  to  completing 
his  purchase.  _  Now,  notice  to  an  agent,  although  one  concerned  for 
bo  h  parties,  is  treated  in  equity  as  notice  to  the  purchaser  himself; 
and  therefore,  if  the  attorney  knows  of  any  equitable  incumbrance 

tZ  l^f«-'f/«"Je,  203.     Gr,:ffitk  v.  OriffUk,  9  Paige,  315. 
»^f-fi-J^r.  240,  etseq,  and  cases  there  cited) 

As  the  pnncipal  is  civilly  responsible  for  the  acts  of  his  agents 
(Doe  V.  Martin,  4  D  <f:  G  M  40  ^  If  ti,„         j        ^  "bcuw, 

crmJw  r.e  f  J  •  'Iv  ,  '  '■'  ™*  ™'"''"'  °f  an  estate  is 
guilty  of  fraud  m  the  sale  of  the  estate  to  which  his  attorney  ia 
pnyy  the  purchaser,  if  he  has  employed  the  same  attorney  in  ne- 
gotating  the  purchase  though  innocent  of  the  fraud,  will  be  affect- 

diffll'  f'  *'  '^^""'i"^  ^"'^  P'^rti''^  that  they  be  represented  by 
different  counsel,  m  aU  transactions  of  the  nature  we  are  eonsiderl 


558  THE  PARTY  TO  TREPARE  TUE  DEED. 

ing.  In  England,  whenever  in  a  proceeding  before  a  master  the 
same  solicitor  is  employed  for  two  or  more  parties,  such  master 
may,  in  his  discretion,  require  that  any  of  the  said  parties  shall  be 
represented  before  him,  by  a  distinct  "solicitor,  and  may  refuse  to 
proceed  until  such  party  is  so  represented.  {Gen.  orders,  23  Nov. 
1831,  77)  This  rule  was  dictated  by  a  knowledge  of  the  inconve- 
nience and  hazard  of  the  contrary  practice. 

Section  VII. 

0/  the  Party  hy  whom  the  Deed  or  Mortgage  is  to  he  prepared, 
and  at  lohose  expense. 

When  the  property  of  an  individual  is  taken  under  the  exercise 
of  the  right  of  eminent  domain,  for  public  use,  by  virtue  of  the  sove- 
reign authority  as  permitted  by  the  constitution — that  private  prop- 
erty shall  not  be  taken  for  public  use  without  just  compensation — 
the  expense  of  the  proceeding  is  borne  exclusively  by  the  party  for 
whose  benefit  the  property  is  taken.  The  party  whose  title  is  forci- 
bly wrested  from  him  is  required  to  be  recompensed  in  money  for  its 
value,  without  any  deduction  for  supposed  benefits,  and  without 
any  liability  for  costs.  This  is  the  principle  on  which  our  laws 
with  respect  to  public  and  private  ways  are  founded.  (2  B.  S.  394 
et  seq.  5th  ed.)  The  like  principle  applies  when  land  is  taken  for  a 
turnpike,  (Id.  480  et  seq.)  or  for  a  plank  road,  (7c?.  495  et  seq.) 

The  general  act  to  authorize  the  formation  of  rail  road  corpora- 
tions (L.  of  1850,  ch.  140,  §  16,  17, 18,  dc.)  is  founded  on  the  same 
principle;  and  we  have  seen,  in  a  former  part  of  this  work,  that 
compensation  must  precede  the  vesting  of  the  title  in  the  company 
or  the  individual  for  whose  benefit  it  is  obtained.  The  same  rule 
has  invariably  been  pursued  by  the  state  in  awarding  damages  for 
property  taken  for  our  canals.  The  state  defrays  the  expenses  of 
the  tribunal  by  whom  the  damages  are  awarded. 

In  the  foregoing  provisions  it  is  assumed  that  the  parties  taking 
the  land  of  others  for  public  use  have  been  unable  to  make  an  ami- 
cable purchase;  and  the  property  is  therefore  taken  against  the  will 
of  its  owner.  But  it  often  happens  that  the  owner  is  willing  to 
part  with  his  title  for  a  fair  equivalent.  In  such  a  case  it  is  usual 
for  the  purchaser  to  bear  the  whole  expense  of  the  conveyances. 
The  rule  in  England,  in  this  class  of  cases,  seems  to  be  the  same. 
(Matter  of  London  and  Greemvich  Railiuay  Co.  3  Hare,  22.) 


WHO  TO  PAY  EXPENSES.  559 

In  transactions  between  buyer  and  seller,  when  no  statute  inter- 
venes, the  parties  may  make  such  stipulations  as  they  please  with 
respect  to  the  expense  of  investigating  the  title,  and  preparing  the 
instruments  of  conveyance.  The  expense  may  be  equally  divided, 
or  be  borne  by  either  party,  as  they  shall  have  agreed.  When  there 
is  no  previous  agreement  between  the  parties  on  this  point,  the 
matter  of  expense  attending  the  conveyances  is  to  be  settled  by  the 
general  usage  of  the  country. 

With  respect  to  a  mortgage  given ,  as  the  security  for  a  loan,  it 
was  said  by  the  master  of  the  rolls,  in  Kennedy  v.  Greene,  (3  Mylne 
&  Keene,  699,)  that  the  solicitor  of  the  mortgagee  is  the  person 
who  is  to  prepare  the  security.  The  money  advanced  is  that  of  the 
mortgagee,  and  it  is  his  interest  that  is  to  be  protected.  The  ex- 
pense of  preparing  the  security  and  of  making  the  requisite  searches 
and  abstracts  when  necessary,  must  be  borne  by  the  mortgagor. 
This  it  is  believed  is  the  usage  in  this  state,  where  sums  of  money 
are  loaned  out  by  corporations  or  individuals  on  mortgage  security. 
The  lender  is  entitled  to  his  money  loaned  and  the  legal  interest, 
which  he  would  not  get  if  he  had  to  bear  the  expenses  of  the  searches, 
examination  of  titles  and  preparation  of  the  securities. 

When  a  mortgage  is  given  for  the  consideration  money,  on  the 
same  land  which  is  sold,  no  abstract  of  title  or  search  for  incum- 
brances against  the  mortgagor  are  necessary.  No  incumbrance 
against  the  vendee  will  attach  upon  an  instantaneous  seisin  which 
is  immediately  conveyed  back  to  the  vendor  by  way  of  mortgage. 
{See  ante,  p.  124.)  In  this  class  of  cases  it  is  usual  for  the  parties 
to  share  the  expense;  the  vendor  paying  for  the  preparation  of  the 
deed  and  for  the  search  for  incumbrances  on  the  estate,  and  the 
vendee  for  the  bond  and  mortgage  given  for  the  whole,  or  some  part 
of  the  purchase  money.  In  transactions  of  this  kind  in  the  coun- 
try, the  same  person  usually  acts  as  counsel  for  both  parties.  The 
purchaser  should,  for  his  own  safety,  require  a  search  for  incum- 
brances against  his  vendor,  and  those  under  whom  he  holds,  and 
not  rely  solely  on  the  covenants  for  title  in  his  deed. 

In  other  cases  between  vendor  and  vendee,  the  duty  of  preparing 
the  title  papers,  and  of  paying  the  expenses  incidental  to  their  prep- 
aration depends  on  the  express  contract  of  the  parties ;  and  if  that 
is  silent,  on  the  general  usage  on  the  subject.  It  is  competent  for 
the  parties,  in  the  preliminary  contract  for  the  sale  and  purchase 
of  an  estate,  to  stipulate  by  which  of  the  parties  the  expenses  shall 


560         OF  THE  PARTY  TO  PAY  EXPENSES. 

he  borne.  If  the  articles  of  agreement  be  judiciously  framed,  and 
the  parties  have  thereby  provided  as  to  subsequent  expenses,  no 
controversy  in  that  respect  will  probably  arise. 

But  in  many  cases  a  sale  takes  place  without  any  preliminary 
articles  of  agreement,  or  if  one  be  made,  it  may  fail  to  contain  any 
certain  disposition  of  this  question.  In  such -cases  resort  must  be 
had  to  the  usage  on  the  subject,  or  the  construction  of  the  defective 
provisions  contained  in  the  contract. 

The  former  practice  in  England  was  to  require  the  vendor  to 
prepare  and  tender  a  conveyance  of  the  premises  to  be  sold,  when 
there  had  been  no  express  stipulations  to  the  contrary.  The  mod- 
em  rule  is  admitted  at  this  time,  says  Lord  St.  Leonards,  to  be  that 
the  expense  of  the  conveyance  must  be  borne  by  the  purchaser,  un- 
less there  has  been  some  different  express  stipulation  on  the  sub- 
ject. (1  Sucjd.  Vend.  309,  Ferk.  ed.)  Therefore,  when  there  is 
no  such  stipulation,  the  purchaser  is  bound  to  tender  the  convey- 
ance.    (Id.) 

The  usage  in  this  state  is  believed  to  be  more  nearly  like  the 
former  rule  in  England,  than  that  which  is  said  now  to  prevail 
there.  In  Connelly  v.  Ple7xe,  (7  IVend.  131,)  Savage,  Ch.  J.  af- 
ter admitting  that  in  England  the  purchaser  is  bound  to  have  the 
deed  drawn  and  presented  to  the  vendor  for  execution,  says  we  have 
not  gone  so  far.  "  The  party  who  is  to  give  the  deed,  should  have 
it  drawn  at  his  own  expense."  On  this  point  it  is  believed  the  su- 
preme court  in  the  fifth  district,  agreed  \nth  the  former  chief  jus- 
tice.    {Carpenter  v.  Brown,  6  Barb.  149.) 

In  most  of  the  cases  in  this  state,  the  question  as  to  who  is  bound 
to  prepare  the  deed,  has  arisen  in  a  collateral  action.  In  Connelly 
V.  Pierce,  (supra,)  it  arose  in  an  action  of  covenant  upon  a  con- 
tract for  the  sqile  of  land,  alleging  as  a  breach  that  the  defendant 
refused  to  convey,  although  requested,  &c.  There  were  several 
pleas  to  this  breach.  In  the  course  of  the  case  it  was  held  that  the 
vendor  who  has  covenanted  to  convey  by  a  certain  day,  is  not  in  de- 
fault until  the  party  who  is  to  receive  the  conveyance,  being  enti- 
tled thereto,  has  demanded  it,  and  having  waited  a  reasonable  time 
to  have  it  drawn  and  executed,  has  made  a  second  demand.  The 
purchaser,  it  was  conceded,  might  avoid  the  necessity  of  a  second 
demand  by  tendering,  on  the  first  demand,  a  deed  prepared  for  ex- 
ecution. It  was  said  that  the  vendor  was  to  be  at  the  expense  of 
having  it  drawn,  but  was  not,  in  such  a  contract  as  that  was,  to 


WHO  TO  TENDER  DEED.  561 

have  it  prepared  until  demanded.  The  supreme  court,  in  Carpen- 
ter V.  Brown,  {supra,)  question  the  necessity  of  a  second  demand. 
They  thought  that  if  the  party  was  entitled  to  the  deed  when  the 
demand  was  made,  no  second  demand  was  necessary. 

In  Fuller  v.  Hubbard,  (6  Cowen,  13,)  the  question  arose  in  an 
action  of  assumpsit  by  the  purchaser  to  recover  back  the  money 
paid,  the  conveyance  not  having  been  given.  The  plaintiff  having 
recovered,  a  motion  was  made  for  a  new  trial,  first,  on  the  ground 
that  the  plaintiff  could  not  sue  on  the  common  counts,  but  should 
have  brought  his  action  on  the  contract;  and  second,  that  he  could 
not  sustain  an  action,  without  having  first  tendered  a  deed  for  exe- 
cution; or  at  least  having  demanded  it.  On  this  point  the  court, 
after  alluding  to  the  English  rule  as  laid  down  in  Sugden,  both  the 
old  rule  and  the  modern  one,  said,  that  to  put  the  vendor  in  default, 
and  to  entitle  the  vendee  to  recover  back  the  purchase  money,  which 
he  had  paid  in  advance,  he  must  tender  the  residue,  and  demand  a 
conveyance.  In  such  a  case,  when  a  part  of  the  purchase  money 
was  due  and  tendered,  a  reasonable  time  should  be  allowed  to  the 
vendor  to  prepare  the  conveyance.  It  was  admitted  that  the  pur- 
chaser might  prepare  the  conveyance  himself,  and  tender  it  for  exe- 
cution at  the  time  he  made  the  payment  or  tender,  but  he  was  not 
bound  to  do  so. 

The  case  of  Eackett  v.  Huson,  (3  Wend.  249,)  was  covenant  by 
the  vendee  against  the  vendor,  on  a  covenant  of  the  latter  to  deliver 
to  the  former  by  a  certain  day  a  good  and  sufficient  warranty  deed, 
&c.  The  case  is  imperfectly  made  as  reported,  but  the  supreme 
court  assumed  that  the  circuit  judge  had  decided  that  when  the 
vendee  brings  covenant  on  such  an  instrument,  he  must  prepare  and 
tender  a  deed  for  the  vendor  to  execute.  This  they  admitted  was 
the  English  rule,  but  was  not  adopted  in  this  state.  They  said  that 
if  the  deed  tendered  by  the  vendor  was  objectionable  in  point  of 
form,  the  vendee  should  have  prepared  one  that  did  conform  to  the 
agreement,  and  present  it  for  execution;  and  if  the  vendor  refused 
he  would  then  be  in  default. 

In  Hudson  v.  Jewett,  (20  John.  24,)  the  action  was  to  recover 
back  part  of  the  purchase  money,  on  the  ground  that  the  contract 
was  rescinded.  The  court  held  that  to  enable  the  purchaser  to 
maintain  the  action,  he  must  show  that  he  has  tendered  the  residue 
of  the  purchase  money  and  demanded  a  deed.  The  chief  justice 
Baid  he  would  not  decide  that  the  purchaser  must  prepare  the  deed, 

Will.— 36 


562  RULE  IN  THIS  STATE. 

as  is  required  in  England,  it  not  being  necessary  bo  to  decide  in  that 
case.  In  that  case  the  vendor  had  prepared  and  tendered  the  deed, 
which  the  vendee  refused  to  accept. 

The  rule  in  Massachusetts  and  in  Maine  is  the  same  as  that  in 
this  state.  In  some  of  the  states  the  modern  English  practice  pre- 
vails.    {See  note  to  Perk.  ed.  1  Sugd.  310.) 

The  rule  in  this  state  may  be  summed  up  as  follows: 

1.  It  is  competent  for  the  parties  to  stipulate  in  the  preliminary 
contract  of  sale  by  whom  and  at  whose  expense  the  conveyance  shall 
be  prepared. 

2.  If  no  such  special  agreement  be  made,  then  it  is  the  duty  of 
the  vendor  to  prepare  the  title  deeds,  at  his  own  expense,  and  cause 
the  requisite  searches  to  be  made  for  incumbrances. 

3.  The  purchaser,  to  put  the  vendor  in  default,  must  demand  the 
conveyance  and  wait  a  reasonable  time  for  its  preparation;  or  he 
may  himself  prepare  the  requisite  deed  and  present  it  to  the  ven- 
dor for  execution.  In  this  latter  case,  the  vendor  should  have  a 
reasonable  time  to  examine  the  deed  before  he  is  required  to  execute 
it.  If  the  purchaser  thus  voluntarily  prepares  the  deed  himself,  to 
which  he  is  entitled,  it  must  be  at  his  own  expense. 


APPENDIX  OF  FORMS. 


ACKNOWLEDGMENTS,  PflOOPS,  ETC. 

No.  1. 
CERTIFICATE  OF  ACKNOWLEDGMENT  BY  A  PARTY  KNOWN  TO  THE  OFFICER. 

State  of  New  York, County,  ss:    On  this day  of ,  I860, 

before  me  the  undersigned,  one  of  the  justices  of  the  supreme  court,  [or  county 

judge  of  the  county  of ,  counsellor,  &c.,  or  one  of  the  justices  of  the  peace 

of  the  said  county,]  personally  appeared  A.  B.,  whom  I  know  to  be  the  person 
described  in  the  within  deed,  and  acknowledged  that  he  executed  the  same.t 

[Signature  of  the  officer.] 

No.  2. 
THE  LIKE,  WITH  NOTICE  OF  ERASURES,  ETC. 
AbiheUdd:  I  have  examined  the  said  deed,  and  find  no  material  alterations  or 
erasures,  except  that  in  the  fifth  line  from  the  top,  the  name  of  James  Jachson  was 
written  on  an  erasure,  and  between  the  10th  and  11th  line,  the  words  ''acres  of 
land,"  were  interlined.  If  the  alterations  and  erasures  are  noticed  by  the  subscrib- 
ing witness  before  his  attestation,  as  they  should  be,  the  officer  who  takes  the 
acknowledgment,  need  not  refer  to  them. 

•  ^''''''V,  '^^^  acknowledgment  need  not  be  in  the  precise  words  of  the  act,  but  it 
is  desirable  to  conform  to  it.  (Jackson  v.  Gumaer,  2  Cowen,  552.  DuvaU  v.  Co- 
venhooven,  4  Wend.  561.)  A^uva,u  c.  ^^u- 


No.  3. 

CERTIFICATE  OF  ACKNOWLEDGMENT,  WHEN  THE  IDENTITY  IS  PROVED  BY 

A  WITNESS. 

State  of  New  York, Coun^,  ss :    On  this day  of  September, 

1860,  before  me  the  undersigned,  one  of  ihe  justices,  &c.,  [as  in  No.  1,]  person- 
ally appeared  A  B.,  purporting  to  be  the  grantor  in  the  within  deed  mentioned, 
and  at  the  same  time  0.  D.,  who  is  personaUy  known  to  me,  who  being  by  me 
[563.] 


564  APPENDIX  OF  FORMS. 

duly  sworn,  testified  that  he  is  acquainted  with  the  said  A.  B.,  and  knows  him  to 
be  the  person  described  in,  and  who  executed  the  said  deed,  which  is  to  me  satis- 
factory evidence  of  the  identity  of  the  said  A.  B.,  and  thereupon  the  said  A.  B. 
acknowledged  that  he  executed  the  said  deed. 

[Signature  of  officer.] 

(I  R.  S.  758,  §  9.    Dibble  v.  Rogers,  13  Wend.  536,  541.) 


No.  4. 

CERTIFICATE  OF  PROOF  OF  A  DEED   BY  THE  SUBSCRIBING  WITNESS,  "WHEN 

THE  OFFICER  KNOWS  THE  SUBSCRIBING  WITNESS. 

(1  R.  S.  758,  §  12.     Dibble  v.  Rogers,  13  Wend.  541.     Norman  v.  Wells,  17  id.  136.) 

State  of  New  York, County,  ss :    On  this day  of  September, 

1860,  before  me  the  undersigned,  one  of  the  justices,  &c.,  [as  in  No.  1,]  personally 
appeared  E.  F.  t  with  whom  I  am  personally  acquainted,  who  being  by  me  duly 

sworn,  testified  that  his  place  of  residence  is  in in  said  county,  that  he 

was  present  and  saw  the  said  A.  B.  execute  the  within  deed,  that  he  knew  him 
the  said  A.  B.  to  be  the  person  described  in  the  said  deed,  and  who  executed  the 
same,  and  that  he  the  said  E.  F.  thereupon  then  and  there  subscribed  his  name 
thereto  as  a  witness  to  the  execution  thereof! 

[Signature  of  officer.] 


No.  5. 

THE  LIKE,  WHEN  THE   SUBSCRIBING   WITNESS   IS  NOT  KNOWN  TO  THE  OF- 
FICER, BUT  HIS  IDENTITY  IS  PROVED  BY  A  THIRD  PERSON. 

77)6  like,  as  in  the  last,  to  the  t,  and  then  proceed  as  follows: 

Who  purports  to  be  the  subscribing  witness  to  the  within  deed,  [or  one  of  the 
&c.,]  and  at  the  same  time  C.  D.,  who  is  personally  known  to  me,  who  being  by 
me  duly  sworn,  said  that  he  is  acquainted  with  the  said  E.  F.,  and  knows  him  to 
be  the  person  who  is  the  subscribing  witness  to  the  said  deed,  which  is  to  me  sat- 
isfactory evidence  of  his  identity ;  and  thereupon  the  said  E.  F.,  being  first  duly 

sworn  by  me,  testified  that  his  place  of  residence  is  in ,  in  said  county, 

that  he  was  present  and  saw  the  said  A.  B.  execute  the  within  deed,  that  he  knew 
him,  the  said  A.  B.,  to  be  the  person  described  in  the  said  deed,  and  who  executed 
the  same,  and  that  he  the  said  E.  F.  thereupon  then  and  there  subscribed  his  name 
thereto  as  a  witness  to  the  execution  thereof. 

'  [Signature,  &c.] 

NoTK.  If  the  instrument  proved  or  acknowledged  be  a  "mortgage,"  "assign- 
ment," "  bond,"  &c.,  describe  it  according  to  the  fact. 


No.  6. 

CERTIFICATE  OF  ACKNOWLEDGMENT  BY  HUSBAND   AND  WIFE,  WHEN  BOTH 

ARE  KNOWN  TO  THE  OFFICER. 

State  of  New  York, County,  ss :     On  this day  of  September, 

1860,  before  me  the  undersigned,  one  of  the  justices  of  the  supreme  court,  [or 


APPENDIX  OF  FORMS.  565 

county  judge  &c.  as  in  No.  1,J  personally  appeared  A.  B.,  and  C.  his  wife,  whom  I 
know  to  be  the  persons  described  in  and  who  executed  the  within  deed,  and  ac- 
knowledged that  they  severally  executed  the  same ;  and  the  said  C.  on  a  private 
examination  apart  from  her  said  husband,  acknowledged  that  she  executed  the 
same  freely  and  without  any  fear  or  compulsion  of  her  said  husband. 

[Signature,  &c.] 

(1  R.  S.  758,  §  10.     Gillett  v.  Stanley,  1  Hill,  121.) 


No.  7. 


THE  LIKE,  WHEN  NEITHER  HUSBAND  OR  WIFE  IS  KNOWN  TO  THE  OFFICER, 
AND  THEIR  IDENTITY  IS  PROVED  BY  A  WITNESS. 

State  of  New  York, County,  ss :    On  this day  of  September, 

1860,  before  me  the  undersigned,  one  of  the  justices  &c.,  [as  in  No.  1,]  personally 
appeared  A.  B.  and  C.  his  wife,  purporting  to  be  the  grantors  named  in  the  within 
deed,  and  also  E.  F.  to  me  well  known ;  and  the  said  E.  F.  being  by  me  duly 
sworn,  testified  that  he  is  acquainted  with  A.  B.  and  C.  his  wife,  and  knows  them 
to  be  the  persons  described  in  and  who  executed  the  within  deed,  which  is  to  me 
satisfactory  evidence  of  the  identity  of  the  said  A.  B.  and  C.  his  wife.  And  there- 
upon the  said  A.  B.  acknowledged  that  he  executed  the  said  deed ;  and  the  said 
C.  on  a  private  examination  apart  from  her  said  husband,  acknowledged  that  she 
executed  the  same  freely,  without  any  fear  or  compulsion  of  her  said  nusband. 

[Signature,  &c.] 
(1  R.  S.  758,  §  9.     Dibble  v.  Rogers,  13  Wend.  536,  541.) 


No.  8. 


THE   LIKE,  WHEN   THE    HUSBAJSTD  IS   KNOWN,  AND  THE   IDENTITY  OF  THE 
WIFE  PROVEN  TO  THE  OFFICER. 

State  of  New  York, County,  ss :    On  this day  of  September, 

1860,  before  me  the  undersigned,  one  of  the  justices,  [as  in  No.  1,]  personally  ap- 
peared A.  B.,  and  C.  his  wife,  the  said  A.  B.  being  known  to  me  to  be  the  person 
described  in  and  who  executed  the  within  deed ;  and  the  said  0.  being  proved  by 
the  oath  of  E.  F.  to  be  the  wife  of  A.  B.  and  the  person  described  in  and  who  ex- 
ecuted the  within  deed,  which  is  to  me  satisfactory  evidence  of  her  identity ; 
whereupon  the  said  A.  B.  and  C.  his  wife,  severally  acknowledged  that  they  exe- 
cuted the  same.  And  the  said  C,  on  a  private  examination  apart  from  her  said 
husband,  acknowledged  that  she  executed  the  same  freely,  and  without  any  fear 
or  compulsion  of  her  said  husband. 

[Signature,  &c.] 
(1  R.  S.  758,  §  10.    Dibble  v.  Rogers,  13  Wend.  541.) 

Tie  officer  need  not  certify  that  he  knew  the  witness  who  identified  the  sub- 
scribing witness. 

(Jackson  v.  Harrow,  11  John.  434.     Same  v.  Vickory,  1  Wend.  406.) 


566  APPENDIX  OF  FORMS. 


No.  9. 

CERTII'ICATE  OF  ACKNOWLEDaMENT  BY  TWO  HUSBANDS  AND  THEIR  WIVES, 
KNOWN  TO  THE  OFFICER. 

StaU  of  New  York, County,  ss:    On  this day  of 1860, 

before  me  the  undersigned,  one  of  the  justices,  [as  in  No.  1,]  personally  appeared 
A.  B.,  and  0.  his  wife,  and  E.  F.,  and  G.  his  wife,  all  of  whom  are  known  to  me 
to  be  the  persons  described  in  and  who  executed  the  within  deed,  and  severally 
acknowledged  that  they  executed  the  same.  And  the  said  C.  and  G.  severally, 
each  for  herself,  on  a  private  examination  apart  from  her  husband,  acknowledged 
that  she  executed  the  same  freely,  and  without  any  fear  or  compulsion  of  her  said 

husband. 

[Signature,  &c.] 


No.  10. 

CERTIFICATE  OF  ACKNOWLEDGMENT  BY  WIFE  ALONE. 

State  of  New  York, County,  ss :    On  this day  of ,  1860, 

before  me  the  undersigned,  one  of  the  justices,  [as  in  No.  1,]  personally  appeared 
C.  B.,  wife  of  A.  B.,  whom  I  know  to  be  the  person  described  in  and  who  executed 
the  within  deed,  and  acknowledged,  on  a  private  examination  apart  from  her  hus- 
band, that  she  executed  the  same  freely,  without  any  fear  or  compulsion  of  her 
said  husband. 

[Signature,  &c.] 


No.  11. 
CERTIFICATE  OF  ACKNOWLEDGMENT  BY  AN  ATTORNEY  IN  FACT. 

State  of  New  York, County,  ss:     On  this day  of ,  1860, 

before  me  the  undersigned,  one  of  the  justices,  [as  in  No.  1,]  personally  appeared 
A.  B.  whom  I  know  to  be  the  person  described  in  and  who  executed  the  within 
deed,  and  acknowledged  that  he  executed  the  same  as  the  act  and  deed  of  C.  D. 
therein  described,  by  virtue  of  a  power  of  attorney  duly  executed  by  the  said 

C.  D.,  bearing  date  the day  of ,  1860,  recorded  in  the  clerk's 

office  of  the  county  of ,  in  Book  M.  of  Powers  of  Attorney,  page  68,  on 

the day  of ,  1860. 

[Signature,  &c.] 


No.  12. 
CERTIFICATE  OF  ACKNOWLEDGMENT  BY  AN  EXECUTOR,  OR  TRUSTEE. 

State  of  New  York, County,  ss :    On  this day  of ,  1860, 

before  me  the  undersigned,  one  of  the  justices,  [as  in  No.  1,]  personally  appeared 
A.  B.  whom  I  know  to  be  the  person  described  in  the  within  deed,  as  executor 
of  the  last  will  and  testament  of  C.  D.,  late  of ,  deceased,  and  acknowl- 
edged that  he  executed  the  same  as  such  executor. 

[Signature,  &c.] 


APPENDIX  OF  FORMS.  567 

No.  13. 
CERTIFICATE  OF  ACKNOWLEDGMENT  BY  A  SHERIFF. 

State  of  New  York, County,  ss :    On  this day  of ,  1860, 

before  me  the  undersigned,  oneof  the  justices,  [as  in  No.  1,]  personally  appeared  f 
A.  B.  Esquire,  sheriff  of  the  county  of  Saratoga,  [or  late  sheriff,]  whom  I  know  to 
be  the  person  described  in  and  who  executed  the  within  deed,  and  acknowledged 
that  he  executed  the  same. 

[Signature,  &c.] 


No.  14. 

THE  LIKE,  WHEN  EXECUTED  BY  UNDER  SHERIFF,  OR  DEPUTY  SHERIFF. 

[A  deputy  sheriff  may  execute  a  deed  in  the  name  of  the  sheriff.  Jackson  v.  Bush, 
10  John.  223.     Same  v.  Davis,  18  id.  7.] 

Same  as  No.  13  to  f,  and  then  as  follows :  C.  D.  Esq.,  whom  I  know  to  be  the 
person  described  in  and  who  executed  the  within  deed,  as  the  general  deputy  of 
A.  B.  Esq.,  sheriff  of  said  county,  and  acknowledged  that  he  executed  the  said 
deed  in  the  name  of  the  said  sheriff  by  virtue  of  his  authority  as  such  general  dep- 
uty as  aforesaid. 

[Signature,  &e.] 


No.  15. 

CERTIFICATE   OF  THE   ACKNOWLEDGMENT   OF  A  DEED  EXECUTED   DURING 

INFANCY,  BY  WAY  OF  CONFIRMATION. 

Sta^  of  New  York, County,  ss:    On  this day  of ,  1860, 

before  me  the  undersigned,  one  of  the  justices,  &c.,  [as  in  No.  1,]  personally  ap- 
peared A.  B.  whom  I  know  to  be  the  person  described  in  and  who  executed  the 
within  deed,  and  thereupon  acknowledged  that  the  same  was  formerly  executed 
by  him  when  he  was  an  infant  under  the  age  of  twenty-one  years ;  that  he  has 
since  arrived  at  full  age,  and  is  desirous  of  confirming  his  former  execution  thereof; 
and  that  he  now  acknowledges  that  he  executed  the  same  as  and  for  his  act  and 
deed. 

[Signature,  &c.] 
The  deed  of  an  infant  is  voidable  only,  except  when  it  delegates  a  naked  author- 
ity, when  it  is  void.     (Bool  v.  Mix,  17  Wend.  119.     Gillett  v.  Stanley,  1  Hill,  121.] 


No.  16. 
CERTIFICATE  OF  PROOF  OF  DEED  EXECUTED  BY  A  MONEYED  CORPORATION. 

State  of  New  York, County,  ss :    On  this day  of  September, 

1860,  before  me  the  undersigned,  one  of  the  justices,  &c.,  [as  in  No.  1,]  personally 
appeared  S.  F.  whom  I  know  to  be  the  person  described  in  and  who  executed  the 
within  deed,  as  president  of  the  Bank  of  Saratoga  Springs,  who  being  by  me  duly 
sworn,  testified  that  he  resides  in  the  village  of  Saratoga  Springs,  in  the  said  county 
that  he  is  the  president  of  the  Bank  of  Saratoga  Springs ;  that  he  knows  the  cor- 
porate seal  of  the  said  bank;  that  the  seal  affixed  to  the  within  deed  is  such  cor- 


568  APPENDIX  OF  FORMS. 

porate  seal ;  that  it  was  so  affixed  by  order  of  the  board  of  directors  of  the  said 
bank,  and  that  he  signed  his  name  as  such  president  to  the  said  deed  by  the  hke 
order. 

[Signature,  &c.] 

(Leavitt  v.  The  Steam  Sawmill  Association,  6  Paige,  57,  59,  60.    Johnson  v. 
Bush,  3  Barb.  Ch.  207.) 

If  the  deed  be  executed  by  the  cashier,  secretary,  or  any  other  officer  or  person, 
the  certificate  will  be  modified  accordingly. 


No.  17. 
THE  LIKE  BY  A  RELIGIOUS  CORPORATION. 

State  of  New  York, County,  ss:    On  this day  of ,  1860, 

before  me  the  undersigned,  one  of  the  justices,  [as  in  No.  1,]  personally  appeared 
A.  B.  to  me  well  known,  who  being  by  me  duly  sworn,  said  that  he  resides  in  the 
town  of  Saratoga  Springs,  in  said  county,  and  is  the  clerk  of  the  corporation  of 
The  Trustees  of  the  Presbyterian  Congregation  of  said  town ;  that  the  seal  affixed 
to  the  within  deed  is  the  corporate  seal  of  the  said  corporation ;  and  that  it  was  so 
affixed  by  order  of  the  said  corporation ;  and  that  he  the  said  A.  B.  subscribed  his 
name  thereto  by  the  like  order  of  the  said  corporation. 

[Signature,  &c.] 


AGREEMENTS. 

No.  18. 
CONTRACT  TO  CONVEY  PROPERTY. 

Articles  of  agreement,  made  and  entered  into  the day  of , 

one  thousand  eight  hundred  and  sixty- ,  between ,  of  the  first 

part,  and ,  of  the  second  part,  witnesseth,  as  follows:  *• 

The  said  party  of  the  first  part  hereby  agrees  to  sell  unto  the  said  party  of  the 
second  part,  all  that  certain  piece  or  parcel  of  land,  situate  and  being  in  the  town 

of and  county  of ,  and  bounded  as  follows :  [here  describe  the 

premises  intended  to  be  sold.]  for  the  sum  of to  be  paid  by  the  said  party 

of  the  second  part,  in  manner  and  at  the  times  hereinafter  mentioned  and  cove- 
nanted, on  the  part  of  the  said  party  of  the  second  part.     And  the  said  party  of 

the  first  part  further  agrees,  that  on  the day  of on  receiving 

from  the  said  party  of  the  second  part  the  sum  of the  said  party  of  the 

first  part  shall  and  will,  at at own  proper  cost  and  expense, 

execute  and  deliver  to  the  said  party  of  the  second  part,  or  to assigns, 

a  proper  deed  of  conveyance,  duly  acknowledged,  for  the  conveying  and  assuring 

to them  the  fee  simple  of  the  said  premises,  fi-ee  from  all  incumbrances, 

which  deed  of  conveyance  ^all  contain  a  general  warranty,  and  the 

usual  full  covenants. 

And  the  said  party  of  the  second  part  hereby  agrees  to  purchase  of  the  said  party 
of  the  fij8t  part,  the  premises  above  mentioned,  at  and  for  the  price  and  sum  above 


APPENDIX  OF  FORMS.  569 

mentioned,  and  to  pay  to  the  said  party  of  the  first  part  the  purchase  money  there- 
for, in  manner  and  at  the  times  following,  to  wit : 

And  it  is  further  agreed  by  and  between  the  parties  to  these  presents,  that  the 
said  party  of  the  first  part  shall  have  and  retain  the  possession  of  said  premises, 

and  be  entitled  to  the  rents  and  profits  thereof, until  the day 

of ,  when  full  possession  of  the  same  shall  be  delivered  to  the  said  party 

of  the  second  part  by  the  said  party  of  the  first  part.  And  it  is  understood  and 
agreed  that  the  stipulations  aforesaid  are  to  apply  to  and  bind  the  heirs,  executors, 
administrators  and  assigns  of  the  respective  parties. 

And  it  is  further  hereby  agreed,  that  in  case  the  said  party  of  the  first  part  shall 
fail  or  refuse  to  execute  and  deliver  a  proper  deed  of  conveyance  in  manner  and  at 
the  time  and  place  above  specified  for  that  purpose,  provided  the  party  of  the  se- 
cond part  shall  be  ready  to  fulfill  and  perform  the  covenants  then  to  be  fulfilled  on 

part :  or  in  case  the  said  party  of  the  second  part  shall  fail  or  refuse  to 

pay  the  said  sum  of at  that  time  and  place  as  above  agreed  upon,  pro- 
vided the  party  of  the  first  part  shall  be  ready  to  deliver  such  deed  of  conveyance, 
as  aforesaid ;  then  the  party  so  failing  shall  and  will  pay  to  the  other  party,  or 

assigns,  the  sum  of dollars,  which  sum  is  hereby  declared,  fixed 

and  agreed  upon,  as  the  liquidated  amount  of  damages  to  be  paid  by  the  party  so 
failing  as  aforesaid,  for non-performance. 

In  witness  whereof  the  parties  to  these  presents  have  hereto  set  their  hands 
and  seals,  the  day  and  year  first  above  written. 

Sealed  and  delivered 
in  presence  of 

No.  19. 
For  a  brief  form  of  an  agreement  for  the  sale  of  a  building,  see  McWhorter  v, 
McMahan,  10  Paige,  386,  and  the  remarks  of  the  chancellor  on  it.     Also  see  Town- 
send  V.  Hubbard,  4  Hill,  351,  and  the  chancellor's  criticism  thereon. 


No.  20. 


ARTICLES  OP  AGREEMENT  FOR  THE   PURCHASE  OF  A   FREEHOLD  ESTATE, 
WITH  DIVERS  COVENANTS  BETWEEN  THE  PARTIES. 

Articles  of  agreement  made,  concluded  and  agreed  upon  this day  of 

,  1860,  between  John  Doe,  of  the  town  of  Saratoga  Springs,  in  the  county 

of  Saratoga,  of  the  first  part,  and  Richard  Roe,  of  the  same  place,  of  the  second 
part,  in  manner  following,  to  wit :  [*] 

First.  The  said  party  of  the  first  part,  for  and  in  consideration  of  the  sum  of 
money  to  be  therefor  paid  by  the  said  party  of  the  second  part,  and  of  the  cove- 
nants and  agreements  hereinafter  mentioned  and  contained  on  the  part  of  the  said 
party  of  the  second  part,  doth  for  himself  and  his  heirs  covenant  and  agree  to. and 
with  the  said  party  of  the  second  part,  his  heirs  and  assigns,  that  the  said  party  of 
the  first  part  shall' and  will,  at  his  own  proper  costs  and  charges,  [or  at  the  proper 
costs  and  charges  of  the  said  party  of  the  second  part,  his  heirs  or  assigns,]  on  or 

before  the day  of ,  next  ensuing  the  date  hereof,  by  a  good 

and  sufficient  grant  or  conveyance  in  the  law,  as  the  said  party  of  the  second  part, 
his  heirs  and  assigns,  or  his  or  their  counsel  learned  in  the  law  shall  reasonably  de- 


570  APPENDIX  OF  FORMS. 

vise,  advise  or  require,  well  and  sufficiently  grant,  bargain  and  sell  unto  the  said 
party  of  the  second  part,  his  heirs  and  assigns,  forever,  all  that  certain  piece  or 
parcel  of  land  &c.,  [here  describe  the  premises  fully  and  accurately,]  situate  in  the 

town  of ,  in  the  county  of ,  and  state  of  New  York,  and  all  the 

estate,  right,  title,  property,  claim  and  demand  of  the  said  party  of  the  first  part, 
of,  in  and  to  the  same,  and  every  part  thereof;  and  which  said  deed  is  to  contain 
proper  and  apt  covenants  that  the  said  party  of  the  first  part  is,  at  the  time  of  such 
conveyance,  seised  of  the  same  premises,  and  every  part  thereof,  of  an  indefeasable 
estate  of  inheritance  therein ;  that  he  has  good  right  and  lawful  authority  to  grant, 
bargain  and  sell  the  same ;  that  the  same  and  every  part  thereof  are  free  from  all 
and  all  manner  of  incumbrances ;  that  the  said  party  of  the  second  part  shall  quietly 
enjoy  the  same  and  every  part  thereof,  free  and  clear  of  all  incumbrances  of  every 
name  or  nature ;  and  that  the  said  party  of  the  first  part  will  forever  warrant 
and  defend  the  same  in  the  quiet  and  peaceable  possession  of  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  [or  it  may  say,  and  which  said  deed  is  to  contain 
the  usual  covenants  of  warranty  and  against  incumbrances — or  the  usual  full  cov- 
enants.] 

Secondly.  In  consideration  whereof  the  said  party  of  the  second  part,  for  himself, 
his  heirs,  executors,  administrators  and  assigns,  doth  hereby  covenant,  promise  and 
agree  to  and  with  the  said  party  of  the  first  part,  his  heirs,  executors,  administra- 
tors and  assigns,t  that  he,  the  said  party  of  the  second  part,  shall  and  will  well  and 
truly  pay  or  cause  to  be  paid  to  the  said  party  of  the  first  part,  his  heirs,  execu- 
tors, administrators  or  assigns,  the  just  and  full  sum  of dollars,  at  the  time 

of  executing  the  said  conveyance,  which  said  sum  is  agreed  to  be  in  full  for  the 
purchase  of  the  said  premises. 

If  it  he  agreed  that  instead  of  a  cash  payment,  the  purchaser  is  to  give  a  mortgage 
on  the  premises,  for  the  whole,  or  some  part  of  the  purchase  money,  proceed  from  t 
as  follows : 

That  he,  the  said  party  of  the  second  part,  will  pay dollars,  part  of  the 

said  purchase  money,  and  will  execute  his  bond  and  mortgage  on  the  said  premises 
to  the  said  party  of  the  second  part,  his  executors,  administrators  and  assigns,  for 

the  sum  of ,  being  the  balance  of  the  said  purchase  money,  payable  in 

manner  following,  to  wit :  one  hundred  dollars  on  the day  of 

next,  [set  out  the  different  payments  with  interest  according  to  the  agreement.] 

If  the  vendor  is  to  continue  in  the  possession  of  the  premises  until  the  completion  of 
the  purchase,  a  covenant  like  this  should  he  inserted : 

And  the  said  party  of  the  first  part  doth  covenant  to  and  with  the  said  party  of 
the  second  part,  his  heirs,  executors,  administrators  and  assigns,  that  in  the  mean- 
time he,  the  said  party  of  the  first  part,  will  not  cut  down  any  timber  or  trees,  or 
commit  any  waste  or  spoil  whatsoever  upon  the  said  premises,  or  any  part  thereof, 
nor  will  he  grant  any  lease  of  the  said  premises,  or  any  part  thereof,  without  the 
privity  or  consent  of  the  said  party  of  the  second  part,  or  his  he.irs  or  assigns. 

If  the  parties  agree  to  divide  the  expenses  incident  to  the  conveyance  and  the  sectirity 
of  the  purchase  money,  a  clause  like  the  following  may  he  inserted : 

And  it  is  hereby  mutually  agreed  by  and  between  the  said  parties  to  these  pres- 
ents, that  the  expense  of  examining  the  title  and  preparing  and  recording  the  con- 


APPENDIX  OF  FORMS.  571 

veyance  on  the  part  of  the  party  of  the  first  part  shall  be  borne  by  him,  and  the 
expense  of  preparing  the  securities  for  the  payment  of  the  purchase  money  and  of 
the  recording  of  the  same,  shall  be  borne  by  the  said  party  of  the  second  part,  his 
executors,  administrators  or  assigns. 

If  it  he  intended  to  provide  against  the  destruction  of  the  said  premises  iyfire,  be- 
tween the  acceptance  of  the  title  under  the  executory  contract  of  sale  and  the  delivery  of 
the  deed  of  said  premises,  a  clause  to  this  effect  should  he  inserted: 

And  it  is  stipulated  and  agreed,  that  until  the  delivery  of  the  deed  of  the  said 
premises  by  the  said  party  of  the  first  part  to  the  said  party  of  the  second  part,  the 
said  premises  shall  be  at  the  risk  of  the  said  party  of  the  first  part,  his  heirs  or 
assigns ;  and  in  case  the  buildings  thereon  shall  be  burned  by  fire,  or  destroyed  by 
lightning,  between  the  day  when  the  said  title  is  accepted  by  the  said  party  of  the 
second  part,  and  the  day  appointed  for  the  delivery  of  the  deed  thereof,  and  the 
actual  delivery  of  the  said  deed,  then  and  in  that  case  the  said  party  of  the  second 
part,  his  heirs  and  assigns,  shall  be  at  liberty,  at  his  option,  to  abandon  the  said 
purchase,  or  to  complete  the  same ;  and  if  he  elects  to  complete  the  said  purchase, 
no  deduction  shall  be  made  in  the  consideration  money  on  account  of  such  damage 
by  fire  or  by  Hghtning;  but  the  insurance  money,  if  the  same  premises  be  insured, 
shall  belong  to  the  said  party  of  the  second  part,  his  heirs  or  assigns. 

(See  Paine  v.  Meller,  6  Ves.  350.  1  Sugd,  on  Vend,  and  Purchasers,  191.  Kidd 
V.  Dennison,  6  Barb.  9,  17.  Swartout  v.  Burr,  1  id.  499.  2  Story's  Eq.  Jur.  §  1212. 
Champion  v.  Brown,  6  John.  Ch.  402.  Livingston  v.  Newkirk,  3  id.  317.  Van 
Wyck  V.  Alliger,  6  Barb.  511.) 

If  it  he  intended  that  the  purchaser  shall  enter  before  the  deed  be  given,  but  that  he 
shall  forfeit  all  previous  payments,  and  deliver  up  the  possession  if  he  fails  to  make  the 
subsequent  payments  as  they  fall  due,  this  clause  should  be  added : 

And  it  is  hereby  further  covenanted  and  agreed  by  and  between  the  said  parties, 
that  the  said  party  of  the  second  part  shall  be  permitted  to  enter  into  the  immedi- 
ate possession  of  the  said  premises,  after  the  execution  of  this  agreement ;  and  in 
case  he  shall  make  default  in  either  of  the  payments  above  mentioned  in  this  con- 
tract, then  the  said  party  of  the  first  part  is  to  be  discharged  from  this  agreement 
to  sell  and  convey  the  said  premises,  and  the  same  shall  become  void  and  of  none 
effect ;  and  the  said  party  of  the  second  part  is  to  forfeit  to  the  said  party  of  the 
first  part  all  the  previous  payments,  and  give  peaceable  possession  of  the  said  prem- 
ises to  the  said  party  of  the  first  part. 

(See  Edgerton  v.  Peckham,  11  Paige,  352,  as  to  the  effect  of  such  agreement  in 
equity.     Wells  v.  Smith,  7  id.  22.) 


No.  21. 
AGREEMENT  FOR  THE  SALE  OP  A  CITY  LOT,  THE  DEED  TO  BE  GIVEN-  AT  A 
FUTURE  DAY,   THE   PURCHASER   TO  ENTER   IMMEDIATELY,  TO   PAY  RENT 
AND  TAXES,  AND  TO  ERECT  BUILDINGS   ON   THE  LOT,  AS  PART  PAYMENT 
OF  THE  CONSIDERATION,  AND  FORFEITURE  ON  NON-FULFILLMENT. 

Commencement  as  in  No.  20,  to  the  *. 

The  said  party  of  the  first  part,  in  consideration  of  the  premises  hereinafter  men- 
tioned, and  upon  the  performance  by  the  said  party  of  the  second  part  of  the  cov- 


572  APPENDIX  OF  FORMS. 

enants  on  his  part  to  be  kept  and  performed,  doth  covenant  and  agree  to  convey 
to  the  said  party  of  the  eecond  part,  his  heirs  and  assigns,  by  a  good  and  sufficient 
deed  in  the  law,  free  from  all  incumbrances,  except  such  taxes  and  as.«cssment3  as 
may  hereafter  become  due  thereon,  that  certain  lot  of  land  situate  and  being  in 

Broadway,  in  the ward  of  the  city  of  New  York,  and  known  as  lot  No. 

,  bounded  as  follows :  [set  out  the  same.] 

And  the  said  party  of  the  second  part  doth,  for  himself,  his  heirs,  executors,  ad- 
ministrators and  assigns,  covenant  and  agree  to  and  with  the  said  party  of  the  first 
part,  his  heirs  and  assigns,  that  he,  the  said  party  of  the  first  part,  will  (1.)  Enter 
immediately  into  the  possession  of  the  said  premises,  and  on  or  before  the  first  day 
of  March,  1861,  build  a  carpenter's  shop  on  the  rear  part  of  said  lot,  and  not  re- 
move the  same  therefrom  until  this  agreement  is  carried  into  ftill  and  complete 
effeet.  (2.)  He  agrees  to  build  and  enclose  upon  the  front  of  the  lot  a  substantial 
brick  house,  of  three  stories  in  height,  on  or  before  the  first  day  of  August,  1861, 
or  in  lieu  thereof,  and  on  the  same  day,  to  pay  to  the  said  party  of  the  first  part,  or 
his  legal  representatives,  the  sura  of  one  thousand  dollars  on  account  of  the  consid- 
eration money.  (3.)  To  execute  and  deliver  to  the  said  party  of  the  first  part,  on 
the  same  day,  a  bond  and  mortgage  of  the  same  house  and  lot  for  two  thousand 
seven  hundred  dollars,  payable  with  interest.  And  if  the  said  party  of  the  second 
part  fails  to  pay  the  said  one  thousand  dollars  on  the  said  first  day  of  August,  1861, 
then  the  said  bond  and  mortgage  are  to  be  made  out  for  three  thousand  seven  hun- 
dred dollars  with  interest;  this  being  the  full  amount  of  consideration  money  for 
the  purchase.     (4.)  The  said  party  of  the  second  part  is  to  pay  interest  at  the  rate 

of per  cent  per  annum,  upon  the  sura  of  ?3700,  to  the  said  party  of  the 

first  part,  from  the  date  of  this  agreement  to  the  first  day  of  August,  1861,  the 
first  half  year's  interest  in  advance,  and  all  taxes  and  assessments  on  the  same 
premises. 

And  the  said  party  of  the  first  part  doth,  on  his  part,  covenant,  promise  and 
agree  to  and  with  the  said  party  of  the  second  part,  his  heirs  and  assigns,  to  exe- 
cute and  deliver  to  the  said  party  of  the  second  part  a  good  and  sufficient  deed  for 
the  said  lot  on  the  first  day  of  August,  1861,  free  from  all  incumbrances,  except 
taxes  and  assessments,  which  may  become  due  after  the  making  of  this  agreement 
[Here  state  what  covenants  are  to  be  contained  in  the  deed.] 
But  upon  this  express  condition,  and  the  agreement  between  the  parties  is  such 
that  if  the  said  party  of  the  second  part  fails  or  neglects  to  perform  all  or  any  one 
of  the  covenants  hereinbefore  contained  on  his  part,  at  the  time  or  times  herein- 
before limited,  then  and  in  such  case  all  and  singular  the  covenants  and  agree- 
ments on  the  part  of  the  said  party  of  tlie  first  part,  shall  cease  and  be  absolutely 
void ;  and  all  the  right,  title  and  interest  of  the  said  party  of  the  second  part,  in 
law  or  equity,  in  the  premises,  shall  also  cease ;  and  thereupon  the  said  party  of 
the  first  part,  his  heirs  and  assigns,  may  immediately  enter  upon  the  premises  and 
have  and  hold  the  same,  with  the  carpenter  shop,  free  and  discharged  from  any 
claims  of  the  said  party  of  the  second  part,  his  heirs  or  assigns. 
Dated  1  May,  1860.  A.  B.   [l.  s.] 

Sealed  and  delivered  the  day  and  year  C.  D.    [l.  s.] 

above  written,  in  presence  of 

(See  Wells  v.  Smith,  2  Edw.  Ch.  R.  78;  S.  C.  on  appeal,  11  Paige,  22.) 


APPENDIX  OF  FORMS.  573 

No.  22. 
ANOTHER  FORM  OF  AGREEMENT  FOR  THE  SALE  OF  A  FARM,  OR  A  CITY  LOT, 
THE  AQREExMENT   TO  BE  VOID,  IF  THE  PURCHASER  FAILS  TO  MAKE  PAY- 
MENTS    PROMPTLY,   AND   THE   VENDOR   AT   LIBERTY  TO   SELL  TO  OTHER 
PARTIES. 

Articles  of  agreement,  made  the day  of ,  one  thousand  eight 

hundred  and ,  between of  the  first  part  and of  the 

second  part,  witnesseth,  that  the  said  part. .  of  the  first  part,  for  and  in  considera- 
tion of  the  sum  of dollars,  to in  hand  paid,  ha . .  contracted  and 

agreed  to  sell  to  the  said  part. .  of  the  second  part,  all  that  certain  piece  or  parcel 

of  land,  situate  in  the  town  of ,  in ,  county  and  state  of 

known  and  distinguished  on  a  map  made  by as  lot  No And 

on  the  payment  by  the  said  party  of  the  second  part,  to  the  said  party  of  the  first 
part,  of  the  several  sums  of  money  hereinafter  mentioned,  the  said  part. .  of  the 
first  part,  agree  to  execute  and  deliver  to  the  said  part . .  of  the  second  part,  a  war- 
ranty deed,  for  the  said  land  :  provided,  and  upon  condition  nevertheless,  that  the 

said  part. .  of  tlie  second  part, heirs  or  assigns,  pay  to  the  said  part. . 

of  the  first  part, heirs  or  assigns,  for  the  same  land,  the  sum  of , 

lawful  money  of  the  United  States  of  America,  payable  as  follows :  the  sum  of 

,  together  with  lawful  interest  on  the  same,  from  the  date  hereof;  and 

the  said  part. .  of  the  second  part,  for heirs,  executors  and  administrators, 

do. .  covenant  and  agree,  to  and  with  the  said  part. .  of  the  first  part, 

heirs  and  assigns,  that  the  said  part. .  of  the  second  part,  will  pay  the  said  several 
sums  as  they  severally  become  due,  with  the  interest  thereof,  without  deduction 
of  any  taxes  or  assessments  whatever.  And  it  is  further  agreed  between  the  par- 
ties to  these  presents,  that  if  default  be  made  in  fulfilling  this  agreement,  or  any 
part  thereof,  on  the  part  of  the  said  part. .  of  the  second  part,  then,  and  in  such 

case,  the  said  part. .  of  the  first  part, heirs  and  assigns,  shall  be  at  liberty 

to  consider  this  contract  as  forfeited  and  annulled,  and  to  dispose  of  the  said  land 
to  any  other  person,  in  the  same  manner  as  if  this  contract  had  never  been  made. 

In  witness  whereof, have  hereunto  set hand. .  and  seal. . 

the  day  and  year  above  written. 

Sealed  and  delivered  in 
presence  of 

(See  WeUs  v.  Smith,  2  Edw.  Ch.  R.  78 ;  S.  C,  11  Paige.  22.) 


No.  23. 

AGREEMENT  FOR  THE  SALE  OF  REAL  ESTATE,  EXECUTED  ON  THE  PART  OF 

THE  VENDOR,  BY  ATTORNEY  DItLY  AUTHORIZED. 

Articles  of  agreement,  made  and  concluded  this day  of ,  I860, 

between  James  Jackson,  of  the  town  of ,  county  of ,  and  state 

of  New  York,  by  John  Doe,  his  attorney  duly  authorized  for  this  purpose,  of  the 
first  part,  and  John  Stiles,  of  the  same  place,  of  the  second  part,  as  follows,  to  wit : 

The  said  party  of  the  first  part,  for  and  in  consideration  of  the  sum  of , 

and  of  the  covenants  and  agreement,  on  the  part  of  the  said  party  of  the  second 
part,  hereinafter  contained,  on  his  part  to  be  kept  and  performed,  doth  covenant 


574  APPENDIX  OF  FORMS. 

and  agree  to  and  with  the  said  party  of  the  second  part,  his  heirs  and  assigns,  to 
grant,  bargain  and  sell  unto  the  said  party  of  the  second  part,  his  heirs  and  assigns, 
by  a  good  and  sufficient  deed,  with  covenants  of  title  and  against  incumbrances, 
the  following  described  piece  or  parcel  of  land,  to  wit,  [here  describe  it,]  the  said 
deed  to  be  prepared  at  the  expense  of  the  said  first  party,  and  ready  to  be  deliv- 
ered to  the  party  of  the  second  part,  on  or  before  the day  of 

next. 

And  the  said  party  of  the  second  part,  for  himself,  his  heirs  and  assigns,  doth 
covenant  and  agree  to  and  with  the  said  party  of  the  first  part,  and  his  legal  rep- 
resentatives, to  pay  to  him  the  sum  of on  the  delivery  of  the  said  deed, 

and  to  execute  and  deliver,  at  his  own  expense,  a  bond  and  mortgage  of  the  same 

premises,  for  the  sum  of ,  being  the  residue  of  the  consideration  money 

for  said  purchase,  payable  in  two  years  from  the  said  day  of  the  delivery  thereof, 
with  lawful  interest  till  paid,  to  the  said  party  of  the  first  part,  his  executors  and 
administrators. 

And  it  is  further  covenanted  and  agreed  by  and  between  the  said  parties,  that 
the  said  party  of  the  second  part  shall  be  at  liberty  to  enter  immediately  into  the 
possession  of  the  said  premises,  and  cultivate  and  improve  the  same  in  a  good  hus- 
bandhke  manner,  and  commit  no  waste  or  other  destruction  thereon,  and  that  from 
the  time  of  such  entry,  the  said  party  of  the  second  part  shall  pay  unto  the  said 
party  of  the  first  part  the  sum  of annually,  being  the  interest  of  the  pur- 
chase money  for  the  said  premises,  and  also  pay  all  taxes  and  assessments  thereon ; 
and  in  default  of  payment  of  principal  or  interest  that  shall  become  due  before  the 
deUvery  of  the  said  deed,  or  which  shall  be  due  at  that  time,  the  said  party  of  the 
first  part  shall  be  at  liberty  to  avoid  this  contract,  and  re-enter  upon  the  said  prem- 
ises, without  notice  to  quit ;  and  in  such  case  the  said  party  of  the  second  part 
shall  immediately  give  up  possession  of  said  premises. 

In  witness  whereof,  the  said  party  of  the  first  part,  by  his  said  attorney,  and  the 
said  party  of  the  second  part  have  hereunto  set  their  bands  and  seals  the  day  and 
year  first  above  written. 

Sealed  and  deUvered  in  James  Jackson,     [l.  s.] 

presence  of  by  John  Doe,  his  Att'y. 

John  Stiles,     [l.  s.] 

Note. — An  agreement  entered  into  under  seal,  by  one  as  attorney  for  another, 
must  be  executed  by  the  attorney  in  the  name  of  his  principal,  and  must  purport 
to  be  sealed  with  the  seal  of  the  principal,  and  not  with  that  of  the  attorney. 

(Townsend  v.  Hubbard,  4  HiU,  351.  Wilks  v.  Back,  2  East,  142.  Berkley  v. 
Hardy,  5  Barn,  &  Ores.  355.) 

No.  24. 

AGREEMENT  TO  BE  INSERTED  IN  AN  EXECUTORY  CONTRACT  OF  A  VACANT 
LOT,  OR  OTHER  PREMISES,  NOT  TO  ERECT  OR  SUFFER  NUISANCES  TO  BE 
ERECTED  THEREON. 

And  the  said  party  of  the  second  part,  for  himself,  his  heirs  and  assigns,  doth 
hereby  covenant  to  and  with  the  said  party  of  the  first  part,  his  heirs,  executors 
and  administrators,  that  neither  the  said  party  of  the  second  part,  nor  his  heirs  or 
assigns,  shall  or  will  at  any  time  hereafter  erect  any  building  within  forty  feet  of 


APPENDIX  OF  FOKMS.  575 

the  front  of  said  lot,  except  of  brick  or  stone,  with  roofs  of  slate  or  metal ;  and  will 
not  erect  or  permit  upon  any  part  of  said  lot  any  slaughter  house,  smith  shop,  forge, 
furnace,  steam  engine,  brass  foundry,  nail  or  other  iron  factory,  or  any  manufactory 
of  gunpowder,  glue,  varnish,  vitriol,  ink  or  turpentine ;  or  for  the  tanning,  dressing 
or  preparing  skins,  hides  or  leather,  or  any  brewery,  distillery,  or  any  other  nox- 
ious or  dangerous  trade  or  business. 


No.  25. 


AGREEMENT  BY  A  TRUSTEE  TO  CONVEY  LANDS  HELD  IN  TRUST,  IN  A  CASE 
WHERE  THE  TRUSTEE  WAS  AUTHORIZED  TO  SELL  LAND,  AND  REINVEST 
THE  PROCEEDS. 

Articles  of  agreement,  made,  concluded  and  agreed  upon  this '.  day  of 

,  1860,  between  John  Doe,  named  as  trustee  in  certain  articles  of  marriage 

settlement  hereafter  mentioned,  of  the  first  part,  and  Richard  Roe,  of , 

&c., of  the  second  part,  as  follows : 

Whereas,  James  Jackson,  of ,  did  by  an  instrument  in  writing  under 

his  hand  and  seal,  bearing  date  the day  of ,  1860,  in  contem- 
plation of  the  marriage  of  his  daughter  A.  B.  to  one  C.  D.,  then  about  to  be  sol- 
emnized, and  in  consideration  thereof,  and  as  a  settlement  upon  his  said  daugh- 
ter of  the  lands  therein  described,  did  grant,  bargain  and  sell  unto  the  said  John 

Doe  the  following  described  piece  or  parcel  of  land,  situate  and  being  (&c ,) 

in  trust,  to  receive  the  rents  and  profits  of  the  said  land,  and  apply  them  to  the 
separate  use  of  the  said  A.  B.  during  her  coverture  with  her  intended  husband,  free 
from  the  control  of  her  said  husband,  the  same  as  if  she  were  a /erne  sole,  her  re- 
ceipt therefor  to  be  a  sufficient  voucher.     And  it  was  thereby,  in  and  by  the  said 
marriage  articles,  further  agreed,  that  the  said  party  of  the  first  part  should  be  au- 
thorized and  empowered,  during  the  continuance  of  the  said  trust,  to  lease  and  de- 
mise the  granted  premises  for  such  lawful  term  or  terras,  and  at  such  rents  and 
upon  such  covenants  as  to  renewals  as  to  them  should  seem  proper ;  and  that  he 
should  be,  and  was  thereby,  authorized  and  empowered  to  grant,  bargain,  sell  and 
convey  in  fee  simple  absolute,  at  public  or  private  sale,  for  cash  or  upon  credit,  or 
partly  for  cash  and  partly  upon  credit,  all  or  any  part  or  parcel  of  the  said  trust 
premises,  or  of  any  other  premises  in  which  the  proceeds  thereof  might  be  rein- 
vested, and  to  invest  the  proceeds  of  such  sale  or  sales  in  other  real  estate  or  upon 
bonds  and  mortgages  within  the  state  of  New  York,  or  in  the  public  stocks  of  the 
United  States,  or  of  the  city  of  New  York,  or  in  improving  other  parts  of  the  said 
real  estate,  and  to  alter  and  change  such  investments  from  time  to  time  as  he  may 
think  proper,  as  by  the  in  part  recited  agreement  more  fully  and  at  large  appears. 
And  whereas,  the  said  party  of  the  first  part,  as  such  trustee,  and  in  pursuance  of 
the  power  therein  vested  in  him,  hath  agreed  to  grant,  bargain  and  sell  to  the  said 
party  of  the  second  part  the  premises  above  described  for  the  sum  of  1000  dollars, 
with  a  view  to  reinvest  the  proceeds  thereof  in  the  public  stocks  of  the  United 
States  for  the  purposes  of  the  said  trust. 

Now,  therefore,  it  is  agreed  by  the  said  parties  to  these  presents,  that  on  or  be- 
fore the day  of next,  the  said  party  of  the  first  part  will,  by  a 

good  and  sufficient  deed  in  the  law,  grant,  bargain  and  sell  unto  the  said  party  of 
the  second  part,  his  heirs  and  assigns,  the  above  described  premises,  on  the  pay- 


576  APPENDIX  OF  FORMS. 

ment  by  him  of  the  said  sum  of  one  thousand  dollars,  and  which  said  deed  shall 
contain  a  covenant  that  the  said  party  of  the  first  part,  as  such  trustee,  has  good 
right  and  lawful  authority  to  convey  the  said  premises  in  manner  aforesaid,  and 
that  he  has  neither  done  or  suffered  any  act  whereby  his  right  to  convey  the  said 
premises  can  be  impaired.  And  the  said  party  of  the  second  part  covenants  and 
agrees  to  accept  such  deed,  and  on  the  delivery  thereof  to  pay  to  the  said  first 
party  the  said  sum  of  one  thousand  dollars. 

In  witness  whereof,  the  said  parties  have  hereto  set  their  hands  and  seals,  the 
day  and  year  first  above  written. 

Sealed  and  delivered  in  John  Doe.  [l.  s.] 

presence  of  Richard  Roe.     [l.  s.] 

KoTE.  See  Belmont  v.  O'Brien,  2  Kern.  394.  Noyes  v.  Blakeman,  2  Seld.  567. 
If  the  trustee  be  an  executor,  and  his  authority  derived  from  the  will  of  the  testa- 
tor, recite  enough  of  it  to  confer  the  authority. 


ANNUITIES. 


For  the  form  of  an  annuity  under  the  English  laws,  see  1  Newnam's  Conveyan- 
cer, 146  ef  seq.  An  annuity  charged  upon  land,  is  a  rent  charge,  and  the  form 
will  be  given  under  the  head  of  Rent,  post. 


ASSIGNMENTS. 

No.  26. 
ASSIGNMENT  OF  MORTGAGE. 

Know  all  men  by  these  presents,  that of  the  first  part,  for  and  in 

consideration  of  the  sum  of lawful  money  of  the  United  States  of 

America,  to in  hand  paid  by  of  the  second  part,  at  or  be- 
fore the  enseahng  and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  ac- 
knowledged, have  granted,  bargained,  sold,  assigned,  transferred  and  set  over,  and 
by  these  presents  do  grant,  bargain,  sell,  assign,  transfer  and  set  over  unto  the  said 

part. .  of  the  second  part,  a  certain  indenture  of  mortgage  bearing  date  the 

day  of ,  one  thousand  eight  hundred  and made  by 

and  recorded  in  the  office  of  the  clerk  of  the county  of in  book 

No of  mortgages,  page ,  on  the day  of ,  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and ,  together  with  the 

bond  or  obligation  therein%escribed,  and  the  money  due  and  to  grow  due  thereon, 

with  the  interest.     To  have  and  to  hold  the  same  unto  the  said  part of  the 

second  part, and  assigns  forever, \  . .  subject  only  to  the  pro- 
viso in  the  said  indenture  of  mortgage  mentioned.  And do  hereby  au- 
thorize and  appoint  the  said  part. .  of  the  second  part true  and  lawful 

attorney,  irrevocable,  in name  or  otherwise,  but  at proper  costs 

and  charges,  to  have,  use,  and  take  all  lawful  ways  and  means,  for  the  recovery  of 


APPENDED  OF  FORMS.  577 

the  said  sum  of  money,  and  interest  secured  to  be  paid  in  and  by  the  said  bond  and 
mortgage ;  and  in  case  of  payment,  to  discharge  and  satisfy  the  same  as  fully  as 

might  or  could  do  if  these  presents  were  not  made.     And do 

hereby  covenant,  promise  and  agree,  to  and  with  the  said  part. .  of  the  second 
part,  that  there  is  now  secured  to  be  paid  by  the  said  bond  and  mortgage  the  sum 
of 

In  witness  whereof, have  hereunto  set hand . .  and  seal . . , 

the day  of one  thousand  eight  hundred  and 

Sealed  and  dehvered  in 
presence  of 

No.  27. 
A  SHORTER  FORM  INDORSED  ON  THE  MORTGAGE. 
In  consideration  of to  me  in  hand  paid,  by ,  of ,  1 

do  hereby  grant,  bargain,  sell,  assign,  transfer  and  set  over  to  him,  the  within 
mortgage  and  the  bond  accompanying  the  same,  for  his  use  and  benefit,  together 
with  all  the  remedies  to  enforce  the  collection  of  the  same. 

Witness  my  hand  and  seal  this day  of ,  1860. 

Note.  Assignments  of  mortgages  should  be  acknowledged  or  proved  and  re- 
corded. 1  R.  S.  762,  §  38.  2  id.  134,  §  6.  The  assignee  cannot  otherwise  give 
the  requisite  discharge,  on  payment,  so  as  to  have  the  mortgage  canceled  of  record. 
The  recording  of  the  assignment  will  not  dispense  with  the  necessity  of  proof  of 
notice  of  such  assignment  to  the  mortgagor.  (1  R.  S.  763,  §  41.  Vanderkempt  v. 
Shelton,  11  Paige,  37.  Trust  Co.  v.  Smith,  2  Barb.  Ch.  84.)  A  bond  and  mortgage 
may  be  assigned  by  parol,  so  as  to  pass  the  title  to  the  assignee.  (Runyan  v.  Mer- 
sereau,  11  John.  534.)  But  a  written  assignment,  under  seal,  duly  proved  or  ac- 
knowledged, is  recommended  in  all  cases. 

No.  28. 
ASSIGNMENT  OF  A  LEASE  BY  THE  LESSOR  TO  A  THIRD  PERSON. 

Know  all  men  by  these  presents,  that  I,  John  Doe,  of ,  for  and  in  con- 
sideration of  the  sum  of ,  to  me  in  hand  paid  by  Richard  Roe,  of , 

the  receipt  whereof  is  hereby  confessed  and  acknowledged,  have  granted,  bargained, 
sold,  assigned,  transferred  and  set  over,  and  by  these  presents  do  grant,  bargain, 
sell,  assign,  transfer  and  set  over  to  the  said  Richard  Roe,  his  executors,  adminis- 
trators and  assigns,  a  certain  indenture  of  lease,  bearing  date  the day  of 

* ,  made  by  me,  the  said  John  Doe,  to  James  Jackson,  his  executors,  ad- 
ministrators and  assigns,  for  the  term  of years  from  the  date  thereof,  at 

the  annual  rent  of ,  payable ,  and  which  said  lease  granted  and 

demised  certain  premises  therein  described ;  to  have  and  to  hold  the  said  lease  and 
the  rents  thereby  secured  to  the  said  Richard  Roe,  his  executors,  administrators 
and  assigns ;  and  I  do  covenant  and  agree  to  and  with  the  said  Richard  Roe,  that 
I  have  good  right  and  lawful  authority  to  assign  the  said  lease,  and  the  rents  to 

become  due  thereon,  and  that  the  rent  from  the I. . .  day  of ,  1860, 

is  unpaid,  and  is  payable  as  the  same  becomes  due,  according  to  the  terms  of  the 
said  lease. 

In  witness  whereof  I  have  hereto  set  my  hand  and  seal  this day  of 

,  1860. 

Sealed  and  delivered  in  John  Doe.     [l.  s.] 

presence  of 

Will.— 37 


578  APPENDIX  OF  FORMS. 

Note.  The  above  assignment  only  transfers  the  rent,  but  not  the  reversion. 
The  rent  may  be  severed  from  the  reversion.  (Demarest  v.  Will.inJ,  8  Cowen,  2U6.) 
A  grant  of  the  reversion  by  the  lessor,  to  a  third  person,  would  pass  not  only  the 
reversion,  but  the  rent  also,  as  an  incident  to  the  reversion.  A  common  bargaia 
and  sale,  or  a  grant  under  the  statute,  is  sufficient  for  this  purpose.     See  post. 

For  a  shorter  form  of  an  assignment  of  the  rent,  see  Demarest  v.  Willard,  supr* 


No.  29. 

ASSIGNMENT  OF  A  LEASE  BY  THE  LESSEE  TO  A  THIRD  PERSON,  AND  THB 
COVENANT  OP  THE  LATTER  TO  SAVE  THE  FORMER  HARMLESS  FROM  THK 
RENT,  ETC. 

It  is  agreed  between  A.  B.,  of ,  lessee  named  in  the  lease  hereinafter 

named,  and  C.  D.,  of ,  as  follows : 

The  said  A.  B.,  for  and  in  consideration  of  the  sura  of ,  to  him  in  hand 

paid  by  the  said  C.  D.,  and  of  the  covenants  and  agreements  of  the  said  C.  D.  here- 
inafter contained,  hereby  grants,  bargains,  assigns,  transfers  and  sets  over  to  the 
said  C.  D.,  his  executors,  administrators  and  assigns,  a  certain  indenture  of  lease, 

bearing  date  the day  of ,  made  by  James  Jackson  to  the  said 

A.  B.,  his  executors,  administrators  and  assigns,  for  the  term  of years 

from  the  date  thereof,  for  a  certain  house  and  lot  therein  described,  at  the  rent  of 

,  payable ,  subject,  nevertheless,  to  the  payment  by  the  said  0. 

D.,  his  executors,  administrators  and  assigns,  of  the  rent  therein  mentioned,  and  the 
performance  of  the  covenants  therein  contained. 

And  the  said  C.  D.,  on  his  part,  doth  covenant  and  agree  to  and  with  the  said 
A.  B.,  that  he,  the  said  C.  D.,  will  well  and  truly  pay  the  said  rent  to  the  party 
entitled  thereto,  and  perform  the  several  covenants  on  the  part  of  the  lessee  of  the 
said  premises,  to  be  performed  and  kept ;  and  will  indemnify  and  save  harmless 
the  said  A.  B.,  of  and  from  all  damages,  costs  and  charges,  which  he  may  be  sub- 
jected to  by  reason  of  any  neglect  or  default  of  him,  the  said  C.  D.,  or  his  assigns, 
in  the  premises. 

In  witness  whereof,  the  said  parties  have  hereto  set  their  hands  and  seals,  the 
day  and  year  first  above  written. 

Sealed  and  delivered  in  A.  B.    [l.  s.] 

presence  of  C.  D.     [l.  s.] 


No.  30. 


A  SHORT  FORM  OF  ASSIGNMENT,   BY  LESSEE  TO  A  THIRD   PERSON,  BY  IN- 
DORSEMENT. 

In  consideration  of to  me  in  hand  paid,  I  do  hereby  assign  and  trans* 

fer  to  C.  D.,  his  executors,  administrators  and  assigns,  the  within  lease  and  all  my 
estate,  right,  title  and  interest  in  the  same,  and  to  the  lands  therein  mentioned, 
subject  to  the  rents  and  covenants  therein  contained.    In  witness  whereot  &c. 

Sealed  and  delivered  in 
presence  of 


APPENDIX  OF  FORMS.  579 

No.  31. 

ASSIGNMENT  OP  A  CONTRACT  FOR  THE  PURCHASE  OF  A  FARM,  BY  THE  PUR- 
CHASER TO  A  THIRD  PERSON,  AND  THE  AGREEMENT  OF  THE  LATTER  TO 
INDEMNIFY  THE  FORMER. 

This  agreement,  made  and  concluded  this day  of ,  1860,  be- 
tween A.  B.  of ,  of  the  first  part,  and  C.  D.  of ,  of  the  second 

part,  witnesseth ; 

That  the  said  party  of  the  first  part,  for  and  in  consideration  of  the  sum  of 

,  dollars,  to  him  in  hand  paid  by  the  said  C.  D.,  and  of  the  covenants  and 

agreements  on  the  part  of  the  said  C.  D.,  hereinafter  mentioned,  to  be  performed 
by  him,  hath  granted,  bargained,  sold,  assigned,  transferred  and  set  over,  and  by 
these  presents  doth  grant,  bargain,  sell,  assign,  transfer  and  set  over  to  the  said 

0.  D.,  his  heirs  and  assigns,  a  contract  for  the  purchase  of  lot  No ,  in  the 

town  of ,  described  as  follows :    :  which  said  contract  was 

made  and  executed  by  James  Jackson,  of ,  to  the  said  A.  B.,  his  heirs  and 

assigns,  and  bears  date  the day  of ,  1860,  and  all  the  estate, 

right,  title,  property,  claim  and  demand  of,  in  and  to  the  same,  and  the  premises 
therein  agreed  to  be  sold  by  the  said  James  Jackson  to  the  said  party  of  the  first 
part;  subject,  nevertheless,  to  the  covenants,  conditions  and  payments  tlaerein 
mentioned. 

And  the  said  party  of  the  second  part,  for  himself,  his  heirs,  executors  and  ad- 
ministrators, doth  covenant  and  agree  to  and  with  the  said  party  of  the  first  part, 
his  heirs,  executors,  administrators  and  assigns,  that  he  will  perform  the  conditions 
and  make  the  payments  in  the  said  contract  required  to  be  kept,  performed  and 
made,  and  indemnify  and  save  harmless  the  said  party  of  the  first  part  of  and  from 
all  and  all  manner  of  damages,  costs  and  charges  which  may  be  occasioned  by  rea- 
son of  the  neglect  or  default  of  the  said  party  of  the  second  part,  his  heirs,  execu- 
tors or  administrators,  in  the  premises. 

In  witness  whereof,  the  said  parties  have  hereto  set  their  hands  and  seals,  the 
day  and  year  first  above  written. 

Sealed  and  delivered  A.  B.   [l.  s.] 

in  presence  of  C.  D.    [l.  s.] 


No.  32. 
ASSIGNMENT  IN  TRUST  FOR   THE  BENEFIT  OF  CREDITORS. 

This  indenture  made  the day  of ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  sixty- ,  between  A.  B.  of  the  town  of 

in  the  county  of ,  of  the  first  part,  and  C.  D.  of  the  town  of ,  in 

the  county  of ,  of  the  second  part, : 

Whereas  the  said  A.  B.  is  justly  indebted  in  divers  suras  of  money  to  divers 
persons,  and  from  varions  unfortunate  circumstances  has  become  unable  to  pay  the 
eame  in  full,  and  is  desirous  of  making  a  fair  and  equitable  distribution  of  all  his 
property,  real  and  persoual,  among  his  creditors:  Now  therefore,  this  indenture 
witnesseth,  that  the  said  party  of  the  first  part,  in  consideration  of  the  premises, 
and  of  the  sum  of  one  dollar  to  him  in  hand  paid  by  the  said  party  of  the  second 


580  APPENDIX  OF  FORMS. 

part,  the  receipt  whereof  is  hereby  confessed  and  acknowledged,  hath  granted,  bar- 
gained, sold,  released,  assigned,  transferred  and  set  over,  and  by  these  presents 
doth  grant,  bargain,  sell,  release,  assign,  transfer  and  set  over  unto  the  said  party 
of  the  second  part,  and  to  hia  heirs  and  assigns  forever,  all  and  singular  the  lands, 
tenements  and  hereditaments  of  the  said  party  of  the  first  part,  wheresoever  the 
same  may  be  situated,  and  which  lands  are  intended  to  be  correctly  described  in 
schedule  (A.)  hereto  annexed,  and  to  pass  to  the  said  assignee,  under  tliis  assign- 
ment, whether  correctly  described  or  not ;  and  also,  all  the  goods,  chattels,  rights 
and  credits,  judgments,  bonds,  choses  in  action,  evidences  of  debt,  and  properly 
of  every  name  and  nature  whatever  of  the  said  party  of  the  first  part,  and  the 
books,  vouchers  and  securities  relating  to  the  same,  and  which  are  intended  to  be 
particularly  described  and  enumerated  in  the  schedule  hereto  annexed  marked  (B.) 
and  to  pass  to  the  said  assignee,  whether  correctly  described  or  not,  except  such 
articles  of  property  as  are  by  law  exempt  from  execution. 

To  have  and  to  hold  the  same,  and  every  part  and  parcel  thereof,  with  the  ap- 
purtenances, to  the  said  party  of  the  second  part,  his  heirs,  executors,  administra- 
tors and  assigns ;  in  trust,  nevertheless,  and  to  and  for  the  following  uses,  intents 
and  purposes,  that  is  to  say :  the  said  party  of  the  second  part  shall  take  pos- 
session of  all  and  singular  the  lands,  tenements  and  hereditaments,  property  and 
effects,  hereby  assigned,  and  sell  and  dispose  of  the  same,  and  convert  them  into 
money ;  and  also  collect  all  and  singular  the  said  debts,  dues,  bills,  bonds,  notes, 
accounts,  claims,  demands  and  choses  in  action ;  and  thereupon  execute,  acknowl- 
edge and  deliver  all  necessary  conveyances  and  instruments  for  the  purpose  of 
passing  the  title  thereof  to  the  respective  purchaser  or  purchasers;  And  by  and  with 
the  proceeds  of  such  sales  and  collections,  the  said  party  of  the  second  part  shall 
first  pay  and  disburse  all  the  just  and  reasonable  expenses,  costs,  charges  and  com- 
missions of  executing  and  carrying  into  effect  this  assignment,  and  all  rents,  taxes 
and  assessments  due  or  to  become  due  on  the  lands,  tenements  and  hereditaments 
aforesaid,  until  the  same  shall  be  sold  and  disposed  of;  and  by  and  with  the  residue 
or  net  proceeds  and  avails  of  such  sales  and  collections,  the  said  party  of  the  second 
part  shall — 

First.  Pay  and  discharge  in  full  the  several  and  respective  debts,  bonds,  notes 
and  sums  of  money  due  or  to  grow  due  from  the  said  party  of  the  first  part,  to  the 
several  persons  designated  in  the  schedule  hereto  annexed,  marked  schedule  (C.,) 
together  with  all  interest  due  or  to  grow  due  thereon ;  and  if  said  net  proceeds  and 
avails  shall  not  be  sufficient  to  pay  and  discharge  the  same  in  full,  then  such  net 
proceeds  and  avails  shall  be  distributed  pro  rata,  share  and  share  alike,  among  the 
said  several  persons  named  in  said  schedule  (C.,)  according  to  the  amount  of  their 
respective  claims :  and 

Secondly.  By  and  with  the  residue  and  remainder  of  said  net  proceeds  and  avails, 
if  any  there  shall  be,  the  said  party  of  the  second  part  shall  pay  and  discharge  all 
the  other  individual  debts,  demands  and  liabilities  whatsoever,  now  existing, 
whether  due  or  hereafter  to  become  due,  except  such  individual  habilities  of  the 
said  party  of  the  first  part  as  may  have  been  incurred  by  him  as  surety  or  indorser 
or  guarantor  for  others,  provided  such  remainder  shall  be  sufficient  for  that  ptir- 
pose ;  and  if  insufficient,  then  the  same  shall  be  applied  pro  rata,  share  and  share 


APPENDIX  OF  FORMS.  ggj 

alike,  to  the  payment  of  the  said  debts,  demands  and  habiHties,  according  to  their 
respective  amounts,  as  in  schedule  (D.,)  hereto  annexed.     And— 

Thirdly.  By  and  with  the  residue  and  remainder  of  the  said  net  proceeds  and 
avails,  if  any  there  shaU  be,  the  said  party  of  the  second  part  shall  pay  and  dischar-e 
all  the  debts  and  liabilities  of  the  said  party  of  the  first  part,  incurred  by  him  "as 
surety  or  indorser,  or  guarantor  or  bail,  for  any  other  person  or  persons,  whether 
due  or  to  grow  due;  and  aU  such  indebtedness  as  he  may  have  incurred  as  a  mem- 
ber of  any  copartnership,  or  as  a  joint  debtor  with  any  other  person  or  persons- 
and  if  msufficient,  then  the  same  shall  be  applied  pro  rata,  to  the  payment  of  the 
said  debts  and  liabUities,  share  and  share  ahke,  according  to  their  respective  amounts, 
and  which  are  mentioned  in  schedule  (E.) 

It  is  the  intention  of  the  said  party  of  the  first  part  to  make,  hereby,  a  full  and 
unconditional  surrender  of  his  property  to  the  payment  of  his  debts  and  UabiUties 
except  such  articles  of  wearing  apparel  and  personal  property  as  are  exempt  by 
law  from  execution;  and  it  is  his  design  that  all  his  debte  and  liabilities  shall  be 
paid  in  one  or  the  other  of  the  above  classes,  in  the  manner  therein  specified  to  the 
extent  of  the  property  hereby  assigned,  whether  such  debts  are  therein  mentioned 
or  not. 

In  witness  whereof,  the  said  party  of  the  first  part  has  hereto  set  his  hand  and 
seal,  the  day  and  year  first  above  written. 

Sealed  and  dehvered  in  k    -n      r        i 

A.  ±5.     [l.  s.l 
presence  of 

Schedule  K— referred  to  in  the  foregoiyig  assignment. 

The  following  is  a  description  of  the  real  estate  of  the  said  A.  B.,  intended  to  be 
assigned  m  trust  for  the  benefit  of  creditors,  and  being  all  the  real  estate  of  which 
he  is  seised  or  possessed : 

1.  A  house  and  lot  situate,  &c. ;  describe  the  different  pieces  of  land,  &c. 

Schedule  B— re/errei  to  in  the  foregoing  assignment 

A  bond  against  John  Doe,  conditioned  to  pay  $1000,  dated $1000 

A  note  against  '' 

[Set  forth,  as  far  as  practicable,  an  inventory  of  the  personal  property  intended 
to  be  assigned;  and  set  forth  the  excepted  articles  by  themselves.] 

Schedule  C— referred  to  in  the  foregoing  assignment. 
The  first  class  of  debts :— 

A  promissory  note,  dated ,  payable  to  A  B.  or  order,  now  due,  about  $500 

[Set  out  all  the  preferred  debts.] 

Schedule  H-^-eferred  to  in  the  foregoing  assignment. 

AnaccountduetoO.  P.  for  wood  purchased  of  him,        .        .        .  «ioO 

[Set  out  the  other  debts.] 

Schedule  E-^eferred  to  in  the  foregoing  assignment 
[Here  set  out  the  de.bte  for  which  the  assignor  is  surety,  &c.  &c.,  if  any.] 


582  APPENDIX  OF  FORMS. 

Notes.  1.  An  assignment  should  not  authorize  the  assignee  to  sell  on  credit 
(Barney  v.  Griffin,  2  Comst.  365.  Nicholson  v.  Leavitt,  2  Sel.l.  510,  I'orter  v.  Clark, 
5  How.  Pr.  Rep.  445.     S.  C,  5  Seld.  142.     Willard's  Eq.  Jur.  246.) 

2.  Assignment  may  provide  for  the  payment  of  the  costs  and  commissions  of 
the  trustee.     (Meacham  v.  Sternes,  9  Paige,  398.     Baniey  v.  Griffin,  supra.) 

3.  An  assignment  may  give  preference  amongst  creditors.  (Boardman  v.  llalli- 
day,  10  Paige,  223.     Griffin  v.  Barney,  2  Comst.  371.) 

4.  But  an  assignment  cannot  vest  the  assignee  with  power  to  gWe  future  prefer- 
ences.    (S.  Cases.)     They  must  be  declared  by  the  a.ssignor  at  the  time.  _ 

5.  A  clause  requiring  the  assignee  to  return  the  surplus  to  the  a.<.sipnor,  after 
paying  debts  and  charges,  is  useless  and  unnecessary,  though  it  would  not  probably 
invalidate  the  assignment.  The  law  would  return  the  surplus.  (Bogert  v.  Ilaight, 
9  Paige,  297,  303.     Beck  v.  Burdett,  1  id.  305.) 

6.  It  is  probably  unnecessary  to  have  a  schedule  annexed  to  the  as.signment, 
giving  a  full  description  of  the  real  estate  of  the  assignor.  The  general  descriptioa 
in  the  assignment  is  enough  to  pass  the  title.  But  it  will  be  found  convenient, 
■where  there  are  different  pieces  of  land  assigned,  to  have  them  s}x.'cified,  so  that 
tlie  purchaser  from  the  assignee  can  more  easily  trace  back  his  title. 

7.  A  clause,  excepting  such  articles  as  are  exempt  by  law  from  execution,  is 
valid,  and  does  not  tend  to  defraud  the  creditors.  It  takes  nothing  from  them 
•whicli  the  law  has  made  applicable  to  debts.  The  exemption  is  a  personal  privi- 
lege, which  the  debtor  may  insist  on  or  waive.  (Mickles  v.  Tousely,  1  Cowen, 
114.  Eari  V.  Camp,  16  Wend.  571.  3  R.  S.  450,  646,  647,  5th  ed.  Carpenter  v. 
Herrington,  25  Wend.  370.     Hall  v.  Penny,  11  id.  44.) 

8.  The  assignor  may  empower  the  assignee  to  compromise  such  of  the  debts  as- 
signed as  are  doubtful,  by  receiving  a  part  of  the  sum  due,  and  discharging  the 
residue.  (Dow  v.  Plainer,  16  N.  Y.  R.  562.)  If  this  is  intended,  a  clause  to  that 
effect  should  be  added  in  the  assignment. 

9.  By  the  act  of  April  13,  1860,  (L.  of  1860,  p.  594,)  the  debtor  is  required  to 
annex  an  inventory  of  his  estate  to  the  assignment,  and  within  twenty  days  there- 
after deliver  it  to  the  county  judge  of  the  county  in  which  such  debtor  resides. 
(See  the  act  for  various  other  matters.) 


CONVEYANCES  BY  DEED  AND  MORTGAGE. 

No.  33. 
BARGAIN  AND  SALE  WITHOUT  COVENANTS  OF   WARRANTY. 

(1  R.  S.  739,  §  142.) 

This  indenture,  made  the day  of ,  in  the  year  one  thousand 

eight  hundred  and between of  the  first  part,  and 

of  the  second  part,  witnesseth,  that  the  said  part. ...  of  the  first  part,  for  and  in 

consideration  of  the  sum  of lawful  money  of  the  United  States  of  .iVjrier- 

ica,  to in  hand  paid,  by  the  said  part ....  of  the  second  part,  at  or  before 

the  ensealing  and  delivery  of  tfiese  presents,  the  receipt  whereof  is  hereby  acknowl- 
edged, ha....  granted,  bargained,  sold,  aliened,  remised,  released,  conveyed  and 
confirmed,  and  by  these  presents  do. .  . .  grant,  bargain,  sell,  alien,  remise,  release, 

convey  and  confirm  unto  the  said  part. ...  of  the  second  part,  and  to 

and  assigns  forever,  all Together  with  all  and  singular  the  tenements. 

hereditaments  and  appurtenances  thereunto  belonging  or  in  anywise  appertaining, 
and  the  reversion  and  reversions,  remainder  and  remainders,  rents,  issues  and  prof- 


APPENDIX  OF  FORMS.  583 

its  thereof.     And  also,  all  the  estate,  right,  title,  interest, property,  pos- 
session, claim  and  demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said 

part of  the  first  part,  of,  in  or  to  the  above  described  premises,  and  every  part 

and  parcel  thereof,  with  the  appurtenances.     To  have  and  to  hold  all  and  singular 
Uie  above  mentioned  and  described  premises,  together  with  the  appurtenances,  unto 

tlae  said  part of  the  second  part, and  assigns  forever. 

In  witness  whereof,   the  said  part of  the  first  part  ha hereunto  set 

hand. .  and  seal. .  the  day  and  year  first  above  written. 

Sealed  and  delivered  in 
presence  of 


No.  34. 
BARGAIN  AND  SALE,  WITH  THE  COVENANT  OF  WARRANTY. 
This  is  the  common  warranty  deed  used  in  this  state.     (1  R.  S.  739,  §  142.) 

This  indenture,  made  the day  of ,  in  the  year  one  thousand 

eight  hundred  and ,  between ,  of  the  town  of ,  in 

the  county  of ,  of  the  first  part,  and of  the  town  of 

in  the  county  of ,  of  the  second  part,  witnesseth,  that  the  said  part 

of  the  first  part,  for  and  in  consideration  of  the  sum  of lawful  money  of 

the  United  States  of  America,  to in  hand  paid  by  the  said  part. .  of  the 

Becond  part,  at  or  before  the  ensealing  and  delivery  of  these  presents,  the  receipt 
whereof  is  hereby  acknowledged,  ha. .  granted,  bargained,  sold,  aliened,  remised, 
released,  conveyed  and  confirmed,  and  by  these  presents  do. .  grant,  bargain,  sell, 
alien,  remise,  release,  convey  and  confirm  unto  the  said  part. .  of  the  second  part, 

and  to heirs  and  assigns  forever,  all Together  with  all 

and  singular  the  tenements,  hereditaments  and  appurtenances  thereunto  belonging, 
or  in  anywise  appertaining,  and  the  reversion  and  reversions,  remainder  and  re- 
mainders, rents,  issues  and  profits  thereof;  and  also,  all  the  estate,  right,  title, 

interest, property,  possession,  claim  and  demand  whatsoever,  as  well  in 

law  as  in  equity,  of  the  said  part. .  of  the  first  part,  of,  in  or  to  the  above  described 
premises,  and  every  part  and  parcel  thereof,  with  the  appurtenances ;  to  have  and 
to  hold  all  and  singular  the  above  mentioned  and  described  premises,  together  with 

the  appurtenances,  unto  the  said  part. .  of  the  second  part, heirs  and 

assigns  forever. 

And  the  said heirs,  the  said  premises,  in  the  quiet  and  peaceable 

possession  of  the  said  part of  the  second  part, heirs  and  assigns, 

against  the  said  part. .  of  the  first  part, heirs,  and  against  all  and  every 

person  and  persons  whomsoever,  lavirfuUy  claiming  or  to  claim  the  same,  shall  and 
will  warrant,  and  by  these  presents  forever  defend. 

In  witness  whereof,  the  said  part. . .  of  the  first  part,  ha. .  hereunto  set 

hand. .  and  seal. .,  the  day  and  year  first  above  written. 

Sealed  and  delivered  in 
presence  of 


^C54  APPENDIX  OF  FORMS. 

No.  35. 
QUIT-CLAIM  DEED. 

To  all  to  whom  these  presents  shall  come,  greeting :     Know  ye,  that 

for  and  in  consideration  of  the  sum  of dollars,  lawful  money  of  the  Uni- 
ted States  of  America,  to in  hand  paid  by ,  at  or  before  the 

ensealing  and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  aaknowl- 
edged,  have  remised,  released  and  forever  quit-claimed,  and  by  these  presents  do 

remise,  release  and  forever  quit-claim  unto ,  and  to heirs 

and  assigns  forever,  all To  have  and  to  hold  the  said  released  prem- 
ises unto  the  said ,  heirs  and  assigns  to own  proper  use  and 

behoof  forever. 

*  In  testimony  whereof,  the  said ha ... .  hereunto  set hand . , 

aad  seal. .  this day  of ,  in  the  year  of  our  Lord  one  thousand 

eiglit  hundred  and 

Sefded  and  delivered  in 
presence  of 


No.  36. 


QUIT-CLAIM  DEED,  WITH  A  COVENANT  AGAINST  THE  ACTS  OF  THE 

GRANTOR. 

The  same  as  No.  35  to  *,  and  then  proceed — And  the  said doth  covenant 

with  the  said  ,  his  heirs  and  assigns,  that  he  hath  not  done  or  suffered 

any  act  or  thing  whereby  the  estate  hereby  released  may  be  impeached,  charged 
or  incumbered,  in  any  manner  whatsoever. 


ITo.  37. 

A  GRANT  OF  AN  ESTATE  IN  TEE,  UNDER  THE  STATUTE,  WITHOUT  COVE- 
NANTS OF  TITLE. 

(1  R.  S.  738,  §  137.) 

This  indenture,  made  the day  of .,  in  the  year  one  thousand 

eight  hundred  and  sixty- ,  between  A.  B.  of :,  of  the  first  part,  and 

0.  D.  of ,  of  the  second  pait,  witnesseth :     That  the  said  party  of  the 

first  part,  for  and  in  consideration  of  the  sum  of ,  to  him  in  hand 

paid  by  the  said  party  of  the  second  part,  the  receipt  whereof  is  hereby  confessed 
and  acknowledged,  hath  granted,  and  by  these  presents  doth  grant,  unto  the  said 
party  of  the  second  part,  and  to  his  heirs  and  assigns  forever — all  that  certain,  &c., 
[here  describe  the  premises,]  together  with  all  and  singular  the  hereditaments  and 
appurtenances  thereunto  belonging  or  in  anywise  appertaining,  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents,  iflsues  and  profits  thereof;  and 
also,  all  the  estate,  right,  title,  interest,  property,  claim  and  demand  whatsoever  of 
him  the  said  party  of  the  first  part,  either  in  law  or  equity,  of,  in  and  to  the  same, 
and  every  part  thereof  t 

In  witness  whereof,  &c.  [as  in  No.  33.] 


APPENDIX  OF  FORMS.  585 

No.  38. 
A  GRANT  UNDER  THE  STATUTE  WITH  COVENANTS  OF  WARRANTY. 
The  saroe  as  in  No.  37  to  t,-and  then  add  the  covenants  intended  to  be  given, 
as  in  a  full  covenant  deed,  or  such  of  them  as  are  required. 

Note.     A  statute  grant  maybe  drawn  still  shorter  than  the  above;  but  most 
parties  prefer  the  form  of  conveyances  to  which  they  have  been  accustomed. 


No.  39. 
FULL  COVENANT  DEED— A  SHORT  FORM. 

This  indenture,  made  the day  of one  thousand  eight  hundred 

and ,  between ,  of  the  first  part,  and ,  of  the 

second  part,  witnesseth:  That  the  said  part. ...  of  the  first  part,  in  consideration 

of dollars  to duly  paid,  ha ... .  sold,  and  by  these  presents 

do ... .  grant  and  convey,  to  the  said  part ....  of  the  second  part,  and  to 

heirs  and  assigns,  forever,  all with  the  appurtenances,  and  all  the 

estate,  right,  title  and  interest  of  the  said  part . of  the  first  part  therein.*     And 

the  said do ... .  hereby  covenant  and  agree   to  and  with  the   said 

part. . . .  of  the  second  part,  that  at  the  time  of  making  this  conveyance 

the  lawful  owner. .  of  the  premises  above  granted  and seised  of  a  good 

and  indefeasible  estate  of  inheritance  therein,  and  that  they  are  free  aud  clear  of 

inchoate  dower  rights,  and  of  all  incumbrances  whatsoever, ,  and  the 

above  granted  premises  in  the  quiet  and  peaceable  possession  of  the  said  part. . . . 

of  the  second  part, heirs  and  assigns,  against  every  person  whomsoever, 

will  warrant  and  forever  defend. 

In  witness  whereof,  the  said  part. ...  of  the  first  part,  ha. . . .  hereunto  set 
hand. .  and  seal. .  the  day  and  year  first  above  written. 

Sealed  and  delivered  in  presence  of 

No.  40. 
FULL  COVENANT  DEED— USUAL  FORM. 

The  same  as  in  No.  39  to  the  *,  and  then  as  follows:     To  have  and  to  hold  the 
above  granted,  bargained  and  described  premises,  with  the  appurtenances,  unto 
the  said  party  of  the  second  part,  his  heirs  and  assigns,  to  his  and  their  own  proper 
use,  benefit  and  behoof,  forever.     And  the  said  party  of  the  first  part,  for  himself, 
his  heirs,  executors  and  administrators,  doth  covenant,  grant  and  agree  to  and 
with  the  said  party  of  the  second  part,  his  heirs  and  assigns,  that  the  covenant  of 
said  party  of  the  first  part,  at  the  time  of  the  sealing  and  delivery  of  seisin, 
these  presents,  is  lawfully  seised,  in  his  own  right,  of  a  good,  absolute  and  inde- 
feasible estate  of  inheritance,  in  fee  simple,  of  and  in  all  and  singular,  the  above 
granted  and  described  premises,  with  the  appurtenances,  and  hath  good  right,  full 
power  and  lawful  authority,  to  grant,  bargain,  sell  and  convey  the  same  in  manner 
aforesaid.     And  that  the  said  party  of  the  second  part,  his  heirs  and  assigns,  shall 
and  may,  at  all  times  hereafter,  peaceably  and  quietly  have,  hold,  use, 
occupy,  possess  and  enjoy  the  above  granted  premises,  and  every  part  quiet  enjo7- 
and  parcel  thereof,  with  the  appurtenances,  without  any  let,  hindrance,  '°^°'" 


|r86  APPENDIX  OF  FORMS. 

molestation  or  disturbance  of  the  said  party  of  the  flrst  part,  his  heirs  or  assigns, 
or  of  any  other  person  or  persons  lawfully  claiming  or  to  claim  the  same  ;  and  that 
the  same  and  every  part  tliereof  are  now  free,  clear  and  discharged  of 
against  incum-  and  from  all  former  and  other  grants,  titles,  charges,  estates,  judgments, 
brance.s.  taxes,  assessments  and  incumbrances  of  what  nature  or  kind  soever. 

And  also,  that  the  said  party  of  the  first  part,  and  his  heirs,  and  all  and  every 
person  or  persons  vrhomsoever,  lawfully  or  equitably  deriving  any  estate,  right, 
P  J  f.  title  or  interest,  of,  in  or  to  the  herein  granted  premises,  by,  from,  un- 
ftirther  assur-  der  OF  in  trust  for  him  or  them,  shall  and  will  at  all  time  or  times  here- 
*""*•  after,  upon  the  reasonable  request,  and  at  the  proper  costs  and  charges 

in  the  law,  of  the  said  party  of  the  second  part,  his  heirs  and  assigns,  make  and 
execute,  or  cause  to  be  made  and  executed,  all  and  every  such  further  and  other 
lawful  and  reasonablo  acts,  conveyances  and  assurances  in  the  law,  for  the  better 
and  more  effectually  vesting  and  confirming  the  premises  hereby  granted,  or  so 
intended  to  be,  in  and  to  the  said  party  of  the  second  part,  his  heirs  and  assigns 
forever,  as  by  the  said  party  of  the  second  part,  his  heirs  and  assigns,  or  his  or 
their  counsel,  learned  in  the  law,  shall  be  reasonably  advised,  devised  or  required. 

And  the  said  party  of  the  first  part,  for  himself  and  his  heirs,  the  above  described 
Covenant  of  ^.ud  hereby  granted  and  released  premises,  and  every  part  and  parcel 
warranty.  thereof,  with  the  appurtenances,  unto  the  said  party  of  the  second  part, 
his  heirs  and  assigns,  against  the  said  party  of  the  first  part  and  his  heirs,  and 
against  all  and  every  person  and  persons  whomsoever,  lawfully  claiming  or  to  claim 
the  same,  shall  and  will  warrant  and  by  these  presents  forever  defend. 

In  witness,  &c.  (as  before  in  No.  39.) 

Sealed  and  delivered  in 

presence  of  Acknowledgment,  or  proof,  &c. 

As  to  the  form  of  deeds  and  their  effect,  see  1  R.  S.  738  et  seq. 

A  conveyance  is  good  to  pass  the  title  without  any  covenants.  (Nixon  v.  Hy- 
serott,  5  John.  58.  Jackson  v.  Fish,  10  id.  456.  Beddoe  v.  Wadsworth,  21  "Wen- 
dell, 120.) 

No.  41. 

If  the  deed  he  given,  suhjed  to  the  payment  by  the  purchaser,  of  a  mortgage  or  other 
incumbrance,  insert  a  clause  like  the  folloioing,  before  the  habendum  clause  at  the  *  in 
No.  39,  to  wit: 

Subject,  however,  to  the  payment  and  performance  by  the  party  of  the  second 
part,  his  executors  and  assigns,  of  the  conditions  contained  in  a  certain  inden- 
ture of  mortgage,  executed  by ,  on  the day  of ,  to 

,  and  recorded  in  the  clerk's  office,  of  the  county  of ,  in  book  of 

mortgages ,  pages ,  on  the day  of ,  at o'clock 

A.  M.,  and  which  said  mortgage  was  given  to  secure  the  payment  of  the  sum  of 

,  at  the  time  and  in  the  manner  therein  mentioned,  and  upon  which  there 

is  now  due  and  payable,  [or  to  become  due  and  payable,]  the  sum  of , 

•with  interest  from  the day  of 

And  at  the  close  of  the  several  covenants  respectively,  add  "except  as  against 
the  incumbrance  above  mentioned." 

(See  post,  under  "  Covenants.") 


APPENDIX  OF  FORMS.  587 


No.  42. 
DEED  TO  A  CORPORATION. 

This  indenture,  made  the day  of ,  186 . . ,  between  A.  B.,  of  the  town 

of ,  in  the  county  of ,  of  the  first  part,  and  the  Saratoga  and  Whitehall 

Eail  Road  Company,  of  the  second  part,  witnesseth :  That  the  said  party  of  the 

first  part,  for  and  in  consideration  of  the  sum  of ,  to  him  in  hand  paid,  by 

the  said  party  of  the  second  part,  the  receipt  whereof  is  hereby  confessed  and  ac- 
knowledged, hath  granted,  bargained,  sold,  remised,  released  and  confirmed,  and 
by  these  presents  doth  grant,  bargain,  sell,  remise,  release  and  confirm  unto  the 
said  party  of  the  second  part,  their  successors  and  assigns  forever,  all  that  certain 
piece  or  parcel  of  land,  [describe  the  same,]  together  with  all  and  singular  the  ten- 
ements, hereditaments  and  appurtenances  thereunto  belonging,  or  in  any  wise  ap- 
pertaining ;  and  the  reversion  and  reversions,  remainder  and  remainders,  rents, 
issues  and  profits  thereof,  and  all  the  estate,  right,  title,  interest,  property,  posses- 
sion, claim  and  demand  whatsoever,  as  well  at  law  as  in  equity,  of  the  said  party 
of  the  first  part,  of,  in  or  to  the  above  described  premises,  and  every  part  and  par- 
cel thereof,  with  the  appurtenances. 

To  have  and  to  hold,  all  and  singular,  the  above  mentioned  and  described  prem- 
ises, together  with  the  appurtenances  unto  the  said  party  of  the  second  part,  and 
their  successors  and  assigns  forever,  t 

The  covenants,  &c.,  as  in  No.  39  or  40,  according  to  the  agreement. 


No.  43. 


THE  LIKE,   UPON  A  CONDITION  THAT  THE  COMPANY  SHALL  BUILD  THEIR 
ROAD  WITHIN  A  CERTAIN  TIME. 

Same  as  in  No.  42  to  the  t,  and  then  add:  Provided  always,  and  these  presents 
are  upon  this  express  condition,  that  the  said  party  of  the  second  part  shall  con- 
struct their  rail  road  and  put  it  in  operation  within  the  time  prescribed  by  the  act 
incorporating  the  same,  [or  any  other  time  to  be  agreed  on  by  the  parties.] 

Then  proceed  as  in  the  last  precedent. 

Note.  This  is  a  condition  subsequent.  The  title  vests  in  fee  in  the  corporation, 
and  is  subject  to  be  devested,  on  failure  to  perform  the  condition,  on  an  entry  by 
the  grantor,  or  its  equivalent.  (Nicoll  v.  The  New  York  and  Erie  R.  R.  Co ,  2 
Kern.  121.     S.  C,  12  Barb.  460.) 


No.  44. 
DEED  BY  A  CORPORATION. 

This  indenture,  made  the day  of ,  186. .,  between  the  Saratoga 

and  Whitehall  Rail  Road  Company,  [or  The  Bank  of  Saratoga  Springs,]  of  the  first 
part,  and  C.  D.,  of,  &c.  &c.,  of  the  second  part. 

And  then  proceed  as  in  the  case  of  a  deed  by  an  individual,  to  the  covenants,  which 
wiU  he  in  this  form: 

And  the  said  party  of  the  first  part  doth  covenant,  &c.,  or,  as  in  the  foregoing 
precedents. 


588  APPENDIX  OF  FORMS. 

In  witness  whereof^  the  said  party  of  the  first  part  hath  hereunto  caused  their 
corporate  seal  to  be  affixed,  and  these  presents  to  be  subscribed  by  their  president 
and  secretary,  [or  cashier,  as  the  case  may  be,]  the  day  and  year  first  above  written. 

Sealed  and  delivered  in  Signed,  ,  President. 

presence  of  ,  Secretary. 

E.  F.  Acknowledged  as  in  No.  16. 


No.  45. 

DEED  BY  HUSBAND  AND  WIFE,  WITH  A  VIEW  TO  EXTINQUISH   HER  INCHO- 
ATE  RIQUT  OF  DOWER. 

The  same  as  in  other  cases,  except  that  the  wife  is  made  a  grantor  with  her  hus- 
band, and  is  therein  so  described — as  "  A.  B.  of ,  and  C.  his  wife,"  <kc. 

The  acknowledgment,  as  in  No.  6,  or  some  of  the  other  forms  applicable  to  the 
case. 


No.  46. 
DEED  BY  THE  WIFE  ALONE,  WHERE  SHE   HAS  OMITTED  TO  JOIN  WITH  HER 
HUSBAND,  THE  OBJECT  BEING  MERELY  TO  RELEASE  HER  INCHOATE  RIGHT 
OF  DOWER. 

This  indenture,  made  the day  of 186. .,  between  A.  B.,  the 

wife  of  C.  D.,  of ,  of ,  of  the  first  part,  and  E.  F.,  of of 

the  second  part,  witnesseth :  That  the  said  party  of  the  first  part,  for  and  in  con- 
sideration of  the  sum  of to  her  in  hand  paid  by  the  said  party  of  the 

second  part,  the  receipt  whereof  is  hereby  confessed  and  acknowledged,  hath 
granted,  bargained,  sold,  remised,  released  and  confirmed,  and  by  these  presents 
doth  grant,  bargain,  sell,  remise,  release  -and  confirm  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns  forever,  all  the  right,  title,  interest,  estate,  claim 
and  demand,  both  at  law  and  in  equity,  as  well  present  as  in  expectancy,  and  all 
claim  of  dower  therein,  of^  in  and  to  all  that  certain  piece  or  parcel  of  land  situate, 
[describe  the  premises.] 

In  witness  whereof,  &c. 

Sealed  and  delivered  in  A.  B.     [l.  s.] 

presence  of 
E.  F. 
Certificate  of  acknowledgment,  aa  in  No.  10. 

Note.  It  is  most  usual  for  the  wife  to  join  with  her  husband  in  the  deed ;  but 
if  this  has  been  omitted,  she  can  execute  a  separate  release  of  her  dower,  without 
her  husband  being  joined  with  her.     The  Albany  Ins.  Co.  v.  Bay,  4  Comst.  9. 

But  she  cannot  bind  herself  by  covenants,  and  they  are  not  inserted  in  a  deed 
when  she  executes  it  alone  without  her  husband. 


No.  47. 


ANOTHER  FORM  01"  A  DEED  WITH  FULL  COVENANTS,  AND  ALSO  A  COVENAlfT 
AGAINST  THE  ERECTION  OF  NUISANCES  ON  THE  SAID  PREMISES. 

This  indenture,  made  the day  of ,  in  the  year  one  thousand  eight 

hundred  and  . .,  between ,  of  the  first  part,  and ,  of  the  second  part, 


APPENDIX  OF  FORMS.  589 

witnesseth:  That  the  said  part. .  of  the  first  part,  for  and  in  consideration  of  the 

Bum  of ,  lawful  money  of  the  United  States,  to in  hand  paid,  by  the 

said  part. .  of  the  second  part,  at  or  before  the  ensealing  and  delivery  of  these  pres- 
ents, the  receipt  whereof  is  hereby  acknowledged,  and  the  said  part. .  of  the  second 

part, heirs,  executors  and  administrators,  forever  released  and  discharged 

from  the  same,  by  these  presents,  ha. .  granted,  bargained,  sold,  aliened,  remised, 
released,  conveyed  and  confirmed,  and  by  these  presents  do . .  grant,  bargain,  sell, 
alien,  remise,  release,  convey  and  confirm  unto  the  said  part. .  of  the  second  part, 

and  to heirs  and  assigns  forever,  all ,  together  with  all  and 

singular  the  tenements,  hereditaments  and  appurtenances  thereunto  belonging  or 
in  any  wise  appertaining,  and  the  reversion  and  reversions,  remainder  and  remain- 
ders, rents,  issues  and  profits  thereof;  and  also  all  the  estate,  right,  title,  interest, 

property,  possession,  claim  and  demand  whatsoever,  as  well  in  law  as  in 

equity,  of  the  said  part. .  of  the  first  part,  of,  in  and  to  the  same,  and  every  part 
and  parcel  thereof  with  the  appurtenances:  To  have  and  to  hold  the  above  granted, 
bargained  and  described  premises,  with  the  appurtenances,  unto  the  said  part. .  of 

the  second  part, heirs  and  assigns,  to their  own  proper  use, 

btpefit  and  behoof,  forever. 

And  the  said ,  for heirs,  executors  and  administrators,  do . . 

hereby  covenant,  grant  and  agree  to  and  with  the  said  part, .  of  the 

second  part, ieirs  and  assigns,  that  the  said ,  at  the  time  of  the 

sealing  and  delivery  of  these  presents, lawfully  seised  in of  a 

good,  absolute  and  indefeasible  estate  of  inheritance,  in  fee  simple,  of  and  in  all  and 

singular  tlie  above  granted  and  described  premises,  with  the  appurtenances, 

and  ha. .  good  right,  full  power  and  lawful  authority,  to  grant,  bargain,  sell  and 
convey  the  same,  in  manner  aforesaid ;  and  that  the  said  part. .  of  the  second  part, 

heirs  and  assigns,  shall  and  may,  at  all  times  hereafter,  peacefully  and 

quietly  have,  hold,  use,  occupy,  possess  and  enjoy  the  above  granted  premises,  and 
every  part  and  parcel  thereof,  with  the  appurtenances,  without  any  let,  suit,  trouble, 

molestation,  eviction  or  disturbance  of  the  said  part . .  of  the  first  part, 

heirs  or  assigns,  or  of  any  other  person  or  persons  lawfully  claiming  or  to  claim  the 
same ;  and  that  the  same  now  are  free,  clear,  discharged  and  unencumbered,  of 
and  from  all  former  and  other  grants,  titles,  charges,  estates,  judgments,  taxes,  as- 
sessments and  incumbrances,  of  what  nature  or  kind  soever. 

And  also,  that  the  said  part. .  of  the  first  part  and heirs,  and  all  and 

every  person  or  persons  whomsoever,  lawfully  or  equitably  deriving  any  estate, 
right,  title  or  interest,  of,  in  or  to  the  hereinbefore  granted  premises,  by,  from,  un- 
der or  in  trust  for them,  shall  and  will,  at  any  time  or  times  hereafter, 

upon  the  reasonable  request,  and  at  the  proper  costs  and  charges  in  the  law,  of  the 

said  part. .  of  the  second  part, heirs  and  assigns,  make,  do  and  execute, 

or  cause  to  be  made,  done  and  executed,  all  and  every  such  further  and  other  law- 
ful and  reasonable  acts,  conveyances  and  assurances  in  the  law,  for  the  better  and 
more  effectually  vesting  and  confirming  the  premises  hereby  granted,  or  so  intend- 
ed to  be,  "in  and  to  the  said  part. .  of  the  second  part, heirs  and  assigns 

forever,  as  by  the  said  part. .  of  the  second  part, heirs  or  assigns  or 

their  counsel  learned  in  the  law,  shall  be  reasonably  advised  or  required :  and  the 
eaid heirs,  the  above  described  and  hereby  granted  and  released  premises, 


590  APPENDIX  OP  FORMa 

and  evei'y  part  and  parcel  thereof,  with  the  appurtenances,  unto  the  said  part. .  of 

the  second  part, heirs  and  assigns,  against  the  said  part. .  of  the  first 

part,  and heirs,  and  against  all  and  every  person  and  persons  whomso- 
ever, lawfully  claiming  or  to  claim  the  same,  shall  and  will  warrant  and  by  these 
presents  forever  defend. 

And  the  said  part. .  of  the  second  part,  for heirs  and  assigns,  do. . 

hereby  covenant  to  and  with  the  said ,  heirs,  executors  and  administra- 
tors, that  neither  the  said  part. .  of  the  second  part,  nor heirs  or  assigns, 

shall  or  will  at  any  time  hereafter,  erect  any  buildings  within  forty  feet  of  the  front 
of  said  lot,  except  of  bri^-k  or  stone,  with  roofs  of  slate  or  metal,  and  will  not  erect 
or  permit  upon  any  part  of  the  said  lot,  any  slaughter  house,  smith  shop,  forge, 
ftirnace,  steam  engine,  brass  foundry,  nail  or  other  iron  factory,  or  any  manufactory 
of  gun  powder,  glue,  varnish,  vitriol,  ink  or  turpentine,  or  for  the  tanning,  dressing 
or  preparing  skins,  hides  or  leather,  or  any  brewery,  distillery  or  any  other  noxious 
or  dangerous  trade  or  business. 

In  witness  whereof,  the  parties  to  these  presents  have  hereunto  interchangeably 
set  their  hands  and  seals,  the  day  and  year  first  above  written. 

Sealed  and  delivered  in 
presence  of 


No.  48. 
DEED  BY  A  MARRIED  WOMAN  OF  HER  REAL  ESTATE,  TINDER  THE  ACT  OP 

1860,  CHAPTER  90. 

This  indenture,  made  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  sixty,  between  A.  B.,  wife  of  C.  D.,  of , 

of  the  first  part,  and ,  of ,  of  the  second  part,  witnesseth :  that 

the  said  party  of  the  first  part,  hy  and  with  the  assent  in  writing,  of  her  hvsland, 

above  named,  and  for  and  in  consideration  of  the  sum  of ,  to  her  in  hand 

paid  by  the  said  party  of  the  second  part,  the  receipt  whereof  is  hereby  acknowl- 
edged, hath  granted,  bargained,  sold,  remised,  released,  conveyed  and  confirmed, 
and  by  these  presents  doth  grant,  bargain,  sell,  remise,  release,  convey  and  confirm 
unto  the  said  party  of  the  second  part,  and  to  his  heirs  and  assigns  forever,  all 
that  certain  piece  or  parcel,  &c.,  [set  out  the  description,]  together  with  all  the 
tenements,  hereditaments  and  appurtenances  thereunto  belonging,  or  in  anywise 
appertaining,  and  the  reversion  and  reversions,  remainder  and  remainders,  rents, 
issues  and  profits  thereof;  and  also,  all  the  estate,  right,  title,  interest,  property, 
possession,  claim  and  demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said 
party  of  the  first  part,  of,  in  or  to  the  above  described  premises,  and  every  part  and 
parcel  thereof,  with  the  appurtenances ;  to  have  and  to  hold  the  same  and  every 
part  thereof,  together  with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns  forever. 

In  witness  whereof,  the  said  party  of  the  first  part  has  hereto  set  her  hand  and 

seal,  the day  of ,  in  the  year  of  our  Lord,  one  thousand  eight 

hundred  and  sixty. 

Sealed  and  delivered  in  A.  B.     [l.  s.] 

presence  of 
E.  F. 


APPENDIX  OF  FORMS.  591 

Acknowledgment  as  in  No.  10.  If  the  identity  of  the  wife  be  proved  to"  the  of- 
ficer, the  certificate  will  be  modified  accordingly,  as  in  No.  8,  or  some  other  form. 
(Gillet  V.  Stanly,  1  Hill,  121 ;  10  Paige,  342.) 

Subjoined  or  endorsed  on  the  deed  should  be  the  assent,  in  writing,  of  the  hus- 
band, which  may  be  in  this  form : 

I,  C.  D.,  husband  of  A.  B.,  the  grantor  in  the  above  [or  the  within]  deed,  do. . 
by  these  presents,  assent  thereto. 

In  witness  whereof,  I  have  hereto  set  my  hand  and  seal  this day  of 

,  1860. 

In  presence  of  C  D.     [l.  s.] 

E.  F. 

Acknowledgment  as  in  No.  1,  if  the  party  be  known  to  the  officer ;  and  if  not^ 
let  his  identity  be  proved. 

Note.  (1.)  Although  the  act  of  1860,  p.  157,  authorizes  a  married  woman  to  bar- 
gain, sell,  assign  and  transfer  her  separate  property,  with  the  assent  in  writing  of 
her  husband,  it  does  not  empower  her  to  bind  herself  by  any  covenants  or  war- 
ranty. (Whitbeckv.  Cook,  15  John.  483.  Jackson  v.  Vanderheyden,  17  id.  167. 
Grout  V.  Townsend,  2  Hill,  554.  Teal  v.  Woodworth,  3  Paige,  470.  Carpenter  v. 
Schermerhorn,  2  Barb.  Ch.  314.) 

(2.)  The  conveyance,  by  a  married  woman,  under  the  acts  of  1848  and  1849, 
(L.  of  1848,  p.  307 ;  L.  of  1849,  p.  528,)  does  not  require  the  assent  of  the  husband, 
and  will,  in  other  respects,  be  Hke  the  above.  No.  47,  and  must  be  duly  acknowl- 
edged. 

(3.)  The  act  of  1860  does  not  require  the  assent  of  the  husband  to  the  convey- 
ance of  his  wife  to  be  under  seal,  or  to  be  acknowledged,  or  proved,  or  recorded; 
but  it  is  recommended,  as  a  matter  of  prudent  precaution,  that  it  should  be  under 
seal,  and  be  acknowledged  or  proved,  and  recorded  with  the  deed. 


No.  49. 
THE  LIKE,  WHEN  THE  ASSENT  OF  THE  HUSBAND  CANNOT  BE  PROCURED  BY 
REASON   OP   HIS   REFUSAL,    ABSENCE,  INSANITY,   ETC.,    AND   LEAVE   HAS 
BEEN  GIVEN  TO  THE   WIFE   BY  THE    COUNTY   COURT   TO  MAKE  THE  CON- 
VEYANCE,  WITHOUT  THE  ASSENT  OF  THE  HUSBAND. 

This  indenture,  &c.,  same  as  in  No.  48,  except  instead  of  the  words  in  italics  hy 
and  with  the  assent  of  her  husband,  insert,  in  pursuance  of  the  order  of  the  county 
court  of  the  county  of ,  a  copy  whereof  is  hereto  annexed,  and  in  consid- 
eration of  the  sum  of  [the  same  as  in  the  last  precedent.] 


CONVEYANCES  BY  PERSONS    ACTING  IN  AN  OFFICIAL  OR  FIDU- 
CIARY CAPACITY. 

No.  50. 
SHERIFF'S  DEED  ON  FORECLOSURE  OP  A  MORTGAGE. 

This  indenture,  made  the day  of in  the  year  one  thousand 

eight  hundred  and ,  between sheriff  of  the county 

of of  the  first  part,  and ,  of  the  second  part :    Whereas,  at  a 


592  APPENDIX  OF  FORMS. 

term  of  the at  the on  the day  of 

one  thousand  eight  hundred  and ,  it  was,  among  other  tliinga, 

ordered  and  adjudged  by  the  said  court,  in  a  certain  action  then  pending  in  the 

said  court  between :  That  all  and  singular  the  mortgaged  premises 

mentioned  in  the  complaint  in  said  action,  and  in  said  judgment  described,  or  so 
much  thereof  as  might  be  sufficient  to  raise  the  amount  due  to  the  plaintiflf. .  for 
principal,  interest  and  costs  in  said  action,  and  which  might  be  sold  separately 
"without  material  injury  to  the  parties  interested,  be  sold  at  public  auction  accord- 
ing to  the  course  and  practice  of  said  court,  by  or  under  the  direction  of  the  sherifif 

of  the county  of ,  that  the  said  sale  be  made that 

the  said  sheriff  give  public  notice  of  the  time  and  place  of  such  sale,  according  to 
the  course  and  practice  of  said  court,  and  that  any  of  the  parties  in  said  action 
might  become  a  purchaser  or  purchasers  on  such  sale :  that  the  said  sheriff  execute 
to  the  purchaser  or  purchasers  of  the  said  mortgaged  premises,  or  such  part  or 
parts  thereof  as  should  be  so  sold,  a  good  and  sufficient  deed  or  deeds  of  convey- 
ance for  the  same : 

And  whereas,  the  said  sheriff,  in  pursuance  of  the  said  judgment  of  the  said  court, 

did,  on  the day  of sell  at  public  auction,  at the 

premises  in  the  said  judgment  mentioned,  due  notice  of  the  time  and  place  of  such 
sale  being  first  given,  agreeably  to  the  said  judgment ;  at  which  sale  the  premises 
hereinafter  described  were  struck  oil'  to  the  said  part  ...  of  the  second  part,  for 
the  sum  of ,  that  being  the  highest  sum  bidden  for  the  same. 

•  Now  this  indenture  witnesseth :  That  the  said  sheriff  of  the county  of 

,  the  party  of  the  first  part  to  these  presents,  in  order  to  carry  into  effect 

the  sale  so  made  by  him  as  aforesaid,  in  pursuance  of  the  judgment  of  the  said 
court,  and  in  conformity  to  the  statute  in  such  case  made  and  provided,  and  also 
in  consideration  of  the  premises,  and  of  the  said  sum  of  money  so  bidden  as  afore- 
said, being  first  duly  paid  by  the  said  part of  the  second  part,   the  receipt 

whereof  is  hereby  acknowledged,  hath  bargained  and  sold,  and  by  these  presents 

doth  grant  and  convey,  unto  the  said  part. ...  of  the  second  part, 

To  have  and  to  hold,  all  and  singular  the  premises  above  mentioned  and  described, 
and  hereby  conveyed,  or  intended  so  to  be,  unto  the  said  part ....  of  the  second 

part, and  assigns,  to their  only  proper  use,  benefit  and  behoof, 

for 

In  witness  whereof,  the  said sheriff,  as  aforesaid,  hath  hereunto  .set 

bis  hand  and  seal,  the  day  and  year  first  above  written. 

Sealed  and  delivered  in 
presence  of   • 

State  of  New  York, County,  ss.     On  the day  of 

one  thousand  eight  hundred  and ,  before  me  came known 

to  me  to  be  the  individual  described  in,  and  who  executed  the  above  conveyance, 
and  acknowledged  that  he  executed  the  same. 

2  R.  S.  191,  192,  for  practice  in  the  former  court  of  chancery.    (Laws  of  1847, 
ch.  280,  §  77,  page  344.) 


APPENDIX  OF  FORMS.  593 

No.  51. 
THE  LIKE,  BY  REFEREE  ON  FORECLOSURR 

This  indenture,  made  the day  of in  the  year  one  thousand 

eight  hundred  and ,  between a  referee  duly  appointed  as 

hereinafter  mentioned,  of  the  first  part,  and ,  of  the  second  part : 

Whereas,  at  a term  of  the on  the day  of 

one  thousand  eight  hundred  and ,  it  was,  among  other  things, 

ordered  and  adjudged  by  the  said  court,  in  a  certain  action  then  pending  in  the 

said  court  between :  That  all  and  singular  the  mortgaged  premises 

mentioned  in  the  complaint  in  said  action,  and  in  said  judgment  described,  or  so 
much  thereof  as  might  be  sufficient  to  raise  the  amount  due  to  the  plaintiff". .  for 
i^principal,  interest  and  costs  in  said  action,  and  which  might  be  sold  separately 
■without  material  injury  to  the  parties  interested,  be  sold  at  public  auction  accord- 
ing to  the  course  and  practice  of  said  court,  by  or  under  the  direction  of  the  said 
party  of  the  first  part,  as  referee  thereby  duly  appointed  for  that  purpose :  that  the 

said  sale   be  made that  the  said  referee  give  public  notice  of  the 

time  and  place  of  such  sale,  according  to  the  course  and  practice  of  said  court, 
and  that  any  of  the  parties  in  said  action  might  become  a  purchaser  or  pur- 
chasers on  such  sale :  that  the  said  referee  execute  to  the  purchaser  or  purchasers 
of  the  said  mortgaged  premises,  or  such  part  or  parts  thereof  as  should  be  sold, 
a  good  and  sufficient  deed  or  deeds  of  conveyance  for  the  same  : 

And  whereaa,  the  said  referee,  in  pursuance  of  the  said  judgment  of  the  said  court, 

did,  on  the day  of one  thousand  eight  hundred  and 

sell  at  public  auction,  at the  premises  in  the  said  judgment  men- 
tioned, due  notice  of  the  time  and  place  of  such  sale  being  first  given,  agreeably 
to  the  said  judgment ;  at  which  sale  the  premises  hereinafter  described  were  struck 

off  to  the  said  part. ...  of  the  second  part,  for  the  sum  of ,  that  being  the 

highest  sum  bidden  for  the  same. 

Now  this  indenture  witnesseth:  That  the  said  referee,  the  party  of  the  first  part 
to  these  presents,  in  order  to  carry  into  efilect  the  sale  so  made  by  him  as  afore- 
said, in  pursuance  of  the  judgment  of  the  said  court,  and  in  conformity  to  the 
statute  in  such  case  made  and  provided,  and  also  in  consideration  of  the  prem- 
ises, and  of  the  said  sura  of  money  so  bidden  as  aforesaid,  being  first  duly  paid 
by  the  said  part of  the  second  part,  the  receipt  whereof  is  hereby  acknowl- 
edged, hath  bargained  and  sold,  and  by  these  presents  doth  grant  and  convey, 
tmto  the  said  part ....  of  the  second  part, 

To  have  and  to  hold,  all  and  singular  the  premises  above  mentioned  and  described, 

and  hereby  conveyed,  or  intended  so  to  be,  unto  the  said  part of  the  second 

part, and  assigns,  to their  only  proper  use,  benefit  and  behoof, 

for 

In  witness  whereof,  the  said referee,  as  aforesaid,  hath  hereunto  set 

his  hand  and  seal,  the  day  and  year  first  above  written. 

Sealed  and  delivered  in 
presence  of 

Will.— 38 


594  APPENDIX  OF  FORMS. 

State  of  New  York, County,  as.     On  the day  of 

one  thousand  eight  hundred  and ,  before  me  came known 

to  me  to  be  the  individual  described  in,  and  who  executed  the  above  conveyance, 
and  acknowledged  that  he  executed  the  same. 


No.  52. 

DEED  OF  SPECIAL  GUARDIAN,  ON  THE  SALE  OF  INFANT'S  ESTATE,  IN  PUH- 

SUANCE  OF  THE  ORDER  OF  THE  COURT. 

This  indenture  made  the day  of ,  in  the  year  one  thousand 

eight  hundred  and between by special  guardian, 

,  infant . .  under  the  age  of ,  of  the  first  part,  and 

of  the  second  part,  witnesseth : 

Whereas,  the  above  mentioned  infant. .  by heretofore  presented  to 

the court,  a  petition  praying  for  a  sale  of  the  right,  title  and  interest  of 

the  said  infant. .  in  the  premises  in  said  petition  mentioned,  and  hereinafter  de- 
scribed :  Upon  which  petition,  an  order  of  the court  was  made,  at  a  spe- 
cial term  of  said  court,  held  at in  the county  of 

bearing  date  the day  of    18. ... ,  appointing above 

named,  the  special  guardian  of  such  infant. .  for  the  purposes  of  the  said  applica- 
tion, and  directing  that  it  be  referred  to ,  a  referee  to  ascertain  the  truth 

of  the  facts  in  such  petition  alleged ;  and  thereupon,  after  the  said  special  guardian 
bad  given  the  security  by  law  required,  such  proceedings  were  afterwards  had, 

that  by  an  order  of  the  said court,  made  at  a  special  term  thereof,  held  at 

in  the  county  of ,  bearing  date  the day  of 

in  the  year  18 ,  it  was,  among  other  things,  in  substance  ordered,  that  the 

above  named ,  special  guardian  of  such  infant. . .,  be  authorized  to  con- 
tract for  the  sale  and  conveyance  of  the  right,  title  and  interest  of  the  said  infant. . 
in  such  real  estate,  for  a  sum  not  less  than  that  specified  in  the  referee's  report  in 
said  order  mentioned ;  and  that  such  sale,  with  the  name  of  the  purchaser,  and  the 
terms  thereof,  be  reported  to  the  said  court,  before  the  conveyance  of  such  prem- 
ises should  be  executed. 

And  whereas,  the  said  special  guardian,  upon  terms  approved  of  by  the  said  re- 
feree, contracted  for  the  sale  of  the  said  premises  with ,  for  the  sum 

of dollars,  that  being  the  highest  sum  ofiered  for  the  same ;  and  there- 
upon, the  said  guardian  made  his  report  on  oath  of  such  agreement  to  this  court, 
pursuant  to  the  requisitions  of  the  last  recited  order,  upon  which  an  order  was 

made,  at  a  special  term  of  said  court,  held  at  the in  the  county  of 

bearing  date  the day  of 18 ,  confirming  such  re- 
port, approving  and  confirming  such  sale,  and  directing  the  same  to  be  carried  into 
effect,  and  ordering  the  said  guardian  to  execute,  acknowledge  and  deliver  a  deed 
of  said  premises  to  said  party  of  the  second  part,  on  his  complying  with  the  terms 
on  which  by  said  agreement  the  same  was  to  be  delivered. 

And  whereas,  the  said  party  of  the  second  part  has  comphed  with  the  said  terms, 
now  therefore,  this  indenture  witnesseth,  that  the  said  part. ...  of  the  first  part, 

by special  guardian,  for  and  in  consideration  of dollars,  to  . .    . 

in  hand  paid,  before  the  enseahng  and  delivery  of  these  presents,  ha bargained, 

sold,  granted,  released  and  conveyed,  and  by  these  presents  do ... .  bargain,  sell, 


APPENDIX  OF  FORMS.  595 

grant,  release  and  convey  unto the  said  party  of  the  second  part, 

heirs  and  assigns  forever  all with  the  possession  and  claim  of  the 

pa,rt of  the  first  part,  of  in  and  to  the  same,  and  every  part  and  parcel  thereof, 

with  the  appurtenances ;  to  have  and  to  hold  the  same,  unto  the  said  party  of  the 

second  part, heirs  and  assigns,  to  his  and  their  only  benefit  and  behoof! 

forever. 

In  witness  whereof,  the  said  part of  the  first  part,  by guardian 

aforesaid,  ha. . . .  hereunto  set hand. ...  and  seal  ....  the  day  and  year 

first  above  written. 

Sealed  and  delivered 
in  presence  of 


No.  53.  , 

SHERIFFS  DEED  ON  THE  SALE  OF  REAL  ESTATE,  BY  VIRTITE  OF  AN  EXE- 
CUTION, TO  THE  PURCHASER. 

This  indenture,  made  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  ... .,  between ,  BheriflF  of  the  county  of 

7  of  the  first  part,  and ,  of  the  second  part: 

Whereas,  by  virtue  of certain  execution. .,  issued  out  of  the 

at  the  suit  of ,  defendant. .,  directed  and  delivered  to  the  said  sheriff' 

commanding  him  that  of  the  goods  and  chattels  of  the  said  defendant. .,  he  should 
cause  to  be  made,  certain  moneys  in  the  said  execution  specified,  and  if  sufficient 
goods  and  chattels  could  not  be  found,  that  then  he  should  cause  the  amount  st» 
specified  to  be  made  of  the  lands,  tenements,  real  estate  and  chattels  real,  which 
the  said  defendant. .  had  on  a 'day  in  the  said  execution. .  mentioned,  or 'at  any 

time  afterwards,  in  whose  hands  soever  the  same  might  be ;  and  the  said 

in  obedience  to  the  command  of  the  said  execution. .,  did  levy  on  and  seize  alVthe 
estate,  right,  title  and  interest  which  the  said  defendant. .  so  had,  of,  in  and  to  the 

premises  hereinafter  conveyed  and  described,  and  on  the day  of 

one  thousand  eight  hundred  and  ... .,  sold  the  said  premises  at  puWic  vendue,  at 

,  in  the  said ,  having  first  given  public  notice  of  the  time  and 

place  of  such  sale,  by  advertising  the  same  according  to  law,  at  which  sale  the  said 

premises  were  struck  off  to ,  for  the  sum  of ,  being  the  highest 

bidder,  and  that  being  the  highest  sum  bidden  for  the  same.  * 
_  And  whereas,  the  said  premises,  after  the  expiration  of  fifteen  months  from  the 

time  of  the  said  sale,  remained  ujiredeemed,  and  no  creditor  of  the  said 

hath  acquired  the  right  and  title  of  the  said  purchaser,  according  to  the  statute  in 
Buch  case  made  and  provided,  (t) 

Now  this  indenture  witnesseth:  That  the  said  party  of  the  first  part,  as  sheriff 
as  aforesaid,  by  virtue  of  the  said  execution. .,  and  in  pursuance  of  the  statute  in 
such  case  made  and  provided,  and  in  consideration  of  the  sum  of  money  so  bidden 
as  aforesaid,  to  him  duly  paid,  hath  sold,  and  by  these  presents  doth  grant  and 
convey  unto  the  said  part. .  of  the  second  part,  all  the  estate,  right,  title  and  inter- 
est, which  the  said  defendant. .  had  on  the day  of ,  one  thou- 
sand eight  hundred  and ,  or  any  time  afterwards,  of,  in  and  to  aU  '. 

To  have  and  to  hold  the  said  above  mentioned  and  conveyed  premises,  with  the 


596  APPENDIX  OF  FORMS. 

appurtenances,  unto  the  said  part. .  of  the  second  part, and  assigns,  for- 
ever, as  fully  and  absolutely  as  the  said  party  of  the  first  part,  as  sheriff  as  afore- 
said, can  or  ought  to  sell  and  convey  the  same,  by  virtue  of  the  said  execution. ., 
and  the  law  relating  thereto. 

In  "witness  whereof,  the  said  party  of  the  first  part  hath  hereunto  set  his  hand 
and  seal,  the  day  and  year  first  above  written. 

Sealed  and  dehvered  in 
presence  of 


No.  54. 
THE  LIKE,  TO  A  REDEEMING  CREDITOR. 

The  same  as  above,  striking  out  the  words  between  *  and  t,  aiid  substituting  the  name 
of  the  creditor  for  the  grfintee,  in  the  deed,  and  the  following  recital  for  the  words 
struck  out : 

And  whereas  the  said  premises,  after  the  expiration  of  one  year  from  the  time 
of  said  sale,  remained  unredeemed  by  any  person  entitled  to  make  such  redemp- 
tion, within  that  time  ;  and  whereas,  0.  P.,  a  creditor  of  the  said  judgment  debtor, 
having,  in  his  own  name,  [or  as  assignee,  or  representative,  or  trustee,]  a  judgment 

in  the  supreme  court,  &c.,  against  the  said  judgment  debtor,  for  the  sum  of , 

in  a  civil  action  rendered  before  the  expiration  of  fifteen  months  from  the  time  of 
such  sale,  and  which  is  a  lien  and  charge  on  the  premises  so  sold,  hath  acquired  all 

the  right  of  the  said ,  [the  original  purchaser,]  to  said  premises,  within  the 

time  and  in  the  manner  and  form  prescribed  by  the  statute  in  such  case  made  and 

provided ;  and  no  other  creditor  of  the  said hath  acquired  the  said  rights 

from  or  against  the  said  purchaser. 

Now  this  indenture  witnesseth ;  as  in  the  last  precedent. 


No.  55. 

SHERIFF'S   CERTIFICATE,  ON  THE  SALE   OP  REAL  ESTATE,  GIVEN  TO   THE 

PURCHASER. 
Supreme  Court. 


s.  V- 

1_)  I, 


A. 

vs. 

^-  -^-  )       I,  A.  B.,  sheriff  of  the  county  of ,  do  certify  that, 

by  virtue  of  an  execution  in  the  above  cause,  tested  the day  of , 

186. .,  by  which  I  was  commanded  to  make,  of  the  goods  and  chattels  of  C.  D.,  in 

my  bailiwick, dollars, which  A.  B.  had  recovered  against  him 

in  said  court,  for  his  damages  which  he  had  sustained  as  well  by  reason  of  the  not 
performing  certain  promises,  [or  for  the  conversion  of  certain  property,  as  the  case 
may  be,]  as  for  his  costs  and  charges ;  and  if  suflScient  goods  and  chattels  could  not 
be  found,  that  then  I  should  cause  the  said  damages  to  be  made  of  the  real  estate 

which  the  said  C.  D.  had,  on  the day  of ,  in  the  year  186. .,  or 

at  any  time  since,  in  whose  hands  soever  the  same  might  be,  as  by  the  said  vn-it 
of  execution,  reference  being  thereafter  had,  more  fully  appears,  I  have  levied  on 
and  this  day  sold  at  public  auction,  according  to  the  statute  in  such  case  made  and 


APPENDIX  OF  FORMS.  597 

provided,  to  J.  K,  who  was  the  highest  bidder,  for  the  sum  of  . .  .• ,  which 

was  the  whole  consideration  of  such  sale,  the  real  estate  described  as  follows,  to 
wit :  [here  set  it  out ;]  and  that  the  said  sale  will  become  absolute  at  the  expiration 

of  fifteen  months  from  tliis  day,  to  wit,  the day  of ,  186. .,  and 

the  said  purchaser  or  his  assigns  be  errtitled  to  a  conveyance  pursuant  to  law,  un- 
less the  said  land  shall  be  redeemed. 

Given  under  my  hand,  this day  of ,  186 . . . 

,  Sheriff  of 

(2  R.  S.  370.  3  R.  S.  651,  652,  5th  ed.)  A  deputy  sheriff  can  sell  and  give  a 
deed  in  the  name  of  the  sheriff.  (Jackson  v.  Bush,  10  John.  223.  Jackson  v.  Da- 
vis, 18  id.  7.)  If  the  sheriff  dies,  resigns  or  is  removed  from  office,  the  duties  of 
the  office  devolve  on  the  under  sheriff,  but  the  deputies  of  the  late  sheriff  do  not 
continue  in  office.  (1  R.  S.  379,  §  72.  Boardman  v.  Halliday,  10  Paige,  223.)  A 
deputy  who  has  levied  while  his  principal  was  in  office,  may  complete  the  sale  af- 
ter his  successor  has  qualified.  (Jackson  v.  Collins,  3  Cowen,  89.  Same  v.  Tuttle, 
9  id.  233 ;  approved  6  Wend.  213.) 


No.  56. 

DEED  OF  EXECUTORS  UNDER  POWER,  CONTAINED  IN  THE  WILL  OF  THEIR 

TESTATOR,  WITH  COVENANT  AGAINST  THEIR  OWN  ACTS. 

This  indenture,  made  the day  of ,  one  thousand  eight  hundred 

and ,  between ,  of  the  first  part,  and ,  of  the  second 

part,  witnesseth :  Whereas, ,  late  of  the of ,  in  the 

county  of ,  deceased,  in Ufetime,  made  and  executed 

last  will  and  testament,  bearing  date  the day  of » 18. . ;  where- 
by, among  other  things,  . .  he . .  constituted  and  appointed  the  said , 

execut of said  last  will  and  testament;  and  did  thereby  empower 

the  said  execut to  sell  and  dispose  of  the  real  estate  belonging  to  the  said  tes- 

tat at  the  time  of death. 

Now,  therefore,  this  indenture  witnesseth:  That  the  said  part of  the  first 

part,  by  virtue  of  the  power  and  authority  to given  in  and  by  the  said 

last  will  and  testament,  and  for  and  in  consideration  of  the  sum  of lawful 

money  of  the  United  States  of  America,  to  them  in  hand  paid,  at  or  before  the  en- 
sealing and  delivery  of  these  presents,  by  the  said  part of  the  second  part,  the 

receipt  whereof  is  hereby  acknowledged,  have  granted,  bargained,  sold,  aliened, 
released,  conveyed  and  confirmed,  and  by  these  presents  do . .  grant,  bargain,  sell, 

alien,  release,  convey  and  confirm  unto  the  said  part. ...  of  the  second  part, 

heirs  and  assigns  forever,  aU Together  with  all  and  singular  the 

hereditaments  and  appurtenances  to  the  same  belonging,  or  in  anywise  appertain- 
ing ;  and  the  reversion  and  reversions,  remainder  and  remainders,  rents,  issues  and 
profits  thereof     And  also,  all  the  estate,  right,  title,  interest,  claim  and  demand 

whatsoever,  both  in  law  and  equity,  which  the  said  testat ....  had  in 

lifetime,  and  at  the  time  of decease,  and  which  the  said  parties  of  the 

first  part,  or  either  of  them,  have  or  hath  by  virtue  of  the  said  last  will  and  testa- 
ment, or  otherwise,  of,  in  and  to  the  same,  and  every  part  or  parcel  thereof,  with 
the  appurtenances :  to  have  and  to  hold  the  said  premises  hereby  granted  and  con- 
veyed, with  the  appurtenances  unto  the  said  part of  the  second  part, 


598  APPENDIX  OF  FORMS. 

heirs  and  assigns,  to their  only  proper  use,  benefit  and  behoof  forever. 

And  the  said  parties  of  the  first  part,  for  themselves  severally  and  respectively,  and 
for  their  several  and  respective  heirs,  executors  and  administrators,  do  severally, 
and  not  jointly,  nor  the  one  for  the  other  or  others  of  them,  nor  for  the  heirs,  ex- 
ecutors, administrators,  or  acts  or  deeds  of  the  other  or  others  of  them,  but  each 

tind  every  of  them,  for  .  .self. .  only,  and  for and  their  heirs,  executors  and 

administrators,  and and  their  several  and  separate  acts  and  deeds  only,  cove- 
nant, grant,  promise  and  agree  to  and  with  the  said  part of  the  second  part, 

heirs  and  assigns,  that  the  said  part of  the  second  part, 

heirs  and  assigns,  shall  and  lawfully  may  from  time  to  time,  and  at  all  times  for- 
ever hereafter,  peaceably  and  quietly  have,  hold,  use,  occupy,  possess  and  enjoy, 
all  and  singular  the  said  hereditaments  and  premises  hereby  granted  and  conveyed, 

to  and  for own  use  and  benefit,  free  and  clear,  of  and  from  all  former  and 

other  gifts,  grants,  bargains,  sales,  mortgages,  judgments,  and  all  other  charges  and 
incumbrances  whatsoever,  had,  made,  committed,  executed  or  done  by  them,  the 
said  parties  of  the  first  part,  or  by,  through,  or  with  their  or  either  of  their  acts, 
deeds,  means,  consent,  procurement  or  privity. 

In  witness  whereof,  the  said  parties  of  the  first  part  to  these  presents  have  here- 
unto set  their  hands  and  seals,  the  day  and  year  first  above  written. 


No.  57. 
REFEREE'S  DEED  IN  PARTITION,  UNDER  AN  ORDER  OF  SALE  BY  THE  COURT. 

This  indenture,  made  the day  of ,  in  the  year  one  thousand 

eio-ht  hundred  and between referee  in  the  action  hereinafter 

mentioned,  of  the  first  part,  and of  the  second  part. 

Whereas,  at  a  special  term  of  the court  of held  at 

on  the day  of one  thousand  eight  hundred  and it 

was,   among  other  things,  ordered,  adjudged  and  decreed  by  the  said  court,  in  a 

certain  action  then  pending  in  the  said  court,  between ,  that  all  and 

singular  the  premises  mentioned  in  the  complaint  in  said  action,  and  hereinafter 
described,  be  sold  at  public  auction,  according  to  the  course  and  practice  of  said 

court,  by  or  under  the  direction  of  the  said ,  who  was  appointed  a  referee 

in  said  action,  and  to  whom  it  was  referred  by  the  said  order  and  judgment  of  the 
said  court,  among  other  things,  to  make  such  sale ;  that  the  said  sale  be  made  in 
the  county  where  the  said  premises,  or  the  greater  part  thereof,  are  situated ;  that 
the  referee  give  public  notice  of  the  time  and  place  of  such  sale,  according  to  law 
and  the  course  and  practice  of  said  court,  and  that  any  of  the  parties  in  said  action 
might  become  a  purchaser  or  purchasers  on  such  sale ;  that  the  said  referee,  after 
said  sale,  make  report  thereof  to  said  court,  and  after  his  report  of  sale  shall  have 
been  duly  confirmed,  then  that  he  execute  to  the  purchaser  or  purchasers  of  the 
said  premises,  or  such  part  or  parts  thereof  as  should  be  so  sold,  a  good  and  suffi- 
cient deed  or  deeds  of  conveyance  for  the  same. 

And  whereas,  the  said  referee,  in  pursuance  of  the  order  and  judgment  of  the 

said  court,  did  on  the day  of one  thousand  eight  hundred  and 

sell  at  public  auction,  at ,  the  premises  in  the  said  order 

and  judgment  mentioned,  due  notice  of  the  time  and  place  of  such  sale  being  first 


APPENDIX  OF  FORMS.  599 

given,  agreeably  to  the  said  order ;  at  which  sale  the  premises  hereinafter  described 
were  struck  off  to  the  said  part. ...  of  the  second  part,  for  the  sum  of 
doUars  that  being  the  highest  sum  bidden  for  the  same,  and  the  said  referee's  re^ 
port  of  said  sale  having  been  duly  confirmed. 

Now  this  indenture  witnesseth,  that  the  said  referee,  the  party  of  the  first  part 
to  these  presents,  in  order  to  carry  into  efl^ect  the  sale  so  made  by  him  as  afore- 
said, m  pursuance  of  the  order  and  judgment  of  the  said  court,  and  in  conformity 
to  the  statute  in  such  case  made  and  provided,  and  also  in  consideration  of  the 
premises,  and  of  the  said  sum  of  money  so  bidden  as  aforesaid,  being  first  duly 
paid  by  the  said  part. ...  of  the  second  part,  the  receipt  whereof  is  hereby  ac- 
knowledged,  hath  bargained  and  sold,  and  by  these  presents  doth  grant  and  con- 
vey, unto  the  said  part of  the  second  part 

To  have  and  to  hold,  aU  and  singular  the  premises  above  mentioned  and  de- 
scribed, and  hereby  conveyed,  or  intended  so  to  be,  unto  the  said  part         of  the 

rnrbehq-f;;-;;;;:.^:'  "''°^' " ''''  ^^^^ ''''-  -^' ^-^^* 

In  witness  whereof,  the  said  party  of  the  first  part,  referee  as  aforesaid,  hath 
hereunto  set  his  hand  and  seal,  the  day  and  year  first  above  written. 
Sealed  and  delivered  iu 
presence  of 


No.  58. 
DEED  OP  A  RIGHT  OF  WAY  ACROSS  THE  LANDS  OP  GRANTOR,  FOREVER 
This  indenture,  made  &c.,  between  A.  B.,  of  &c,  of  the  first  part,  and  C.  D    of 
&c.,  of  the  second  part,  witnesseth :  That  the  said  party  of  the  first  part  for  and  in 

consideration  of  the  sum  of to  him  in  hand  paid  by  the  said  party  of  the 

second  part,  the  receipt  whereof  is  hereby  confessed  and  acknowledged,  hath 
granted  bargained,  sold  and  confirmed,  and  by  these  presents  doth  grant^bar^ain 
seU  and  confirm  unto  the  said  party  of  the  second  part,  his  heirs  and  ass^i-^ns 
forever,  a  right  of  way  in  and  over  a  certain  strip  of  land  of  the  said  party  of  the 
firs   part,  leading  from  the  highway  to  the  lands  of  the  said  party  of  the  second 

part,  situate  and  being  in  the  town  of in  the  county  of  ... .  for  the 

said  party  of  the  second  part,  his  heirs  and  assigns,  and  his  and  their  servants  and 
tenants,  at  all  times  freely  to  pass  and  repass,  on  foot  or  with  horses,  oxen,  cattle 
sheep,  swine,  beasts  of  burden,  wagons,  carts,  sleighs  or  other  vehicle  or  carria<.e' 
whatever  from  the  highway  to  the  lands  of  the  said  party  of  the  second  part,  and 
from  the  lands  of  the  said  party  of  the  second  part  to  the  said  highway,  the  said 
strip  of  and,  hereby  granted  as  a  way,  being  in  width  twenty  feet,  and  beginning. 
at  a  stake  and  stones  in  the  west  side  of  the  highway  which  passes  through  the 
lands  of  the  said  party  of  the  first  part,  in  the  town  afores^d,  twenty  feet  from  the 
northeast  corner  of  the  land  of  the  said  first  party,  and  running  thence  westerly 
parallel  to  the  north  hne  of  the  said  land  of  the  said  party  of  the  first  part,  at  the 
distance  of  twenty  feet  therefrom,  until  it  strikes  the  land  of  the  said  party  of  the 
second  part,  a  distance  of  sixty  rods  from  the  said  highway ;  the  said  way  being 
in  length  sixty  rods,  and  in  breadth:  twenty  feet. 
To  have  and  to  hold  the  said  easement  and  privilege  to  the  said  party  of  the 


goo  APPENDIX  OF  FORMS. 

second  part,  his  heirs  and  assigns  forever,  as  an  appurtenance  to  the  land  of  the 
said  party  of  the  second  part.  And  the  said  party  of  the  second  part,  for  himself, 
his  heirs  and  assigns,  hereby  agrees  to  make  and  keep  up  the  fence  on  the  exterior 
lines  of  the  said  way,  at  his  and  their  own  proper  costs  and  charges,  forever.  [In- 
sert such  covenants  as  are  agreed  upon,  &c.] 

In  witness  whereof,  &c.,  (as  in  other  cases  of  deeds.    It  should  be  acknowledged 
and  recorded.) 


No.  59. 
CONVEYANCE  BY  LEASE  AND  RELEASE. 

This  indenture,  made  &c.,  between  A.  B.,  of  &c.,  of  the  first  part,  and  C.  D., 
of  &c.,  of  the  second  part,  witnesseth :  That  the  said  A.  B.,  for  and  in  considera- 
tion of  the  sura  of  one  dollar  to  him  in  hand  paid  by  the  said  party  of  the  se- 
cond part,  at  or  before  the  ensealing  and  delivery  of  these  presents,  the  receipt 
whereof  is  hereby  confessed  and  acknowledged,  hath  granted,  bargained  and 
sold,  and  by  these  presents  doth  grant,  bargain  and  sell  unto  the  said  C.  D.,  his 
executors,  administrators  and  assigns,  all  that  certain  piece  or  parcel  of  land,  [set 
out  the  description  fully,]  and  the  reversion  and  reversions,  remainder  and  re- 
mainders, rents,  issues  and  profits  thereof,  with  the  appurtenances. 

To  have  and  to  hold  the  said  lands,  tenements  and  hereditaments,  and  premises 
above  granted,  bargained  and  sold,  and  every  part  and  parcel  thereof,  with  the 
appurtenances,  unto  the  said  C.  D.,  his  executors,  administrators  and  assigns,  from 
and  including  the  day  of  the  date  hereof,  for  and  during  and  unto  the  full  end  and 
term  of  one  year,  and  fully  to  be  complete  and  ended,  yielding  and  paying  thereof 
at  the  expiration  of  the  said  year,  one  cent,  if  the  same  shall  be  lawfully  demanded ; 
to  the  intent,  that  by  virtue  of  these  presents,  and  by  force  of  the  statute  made  for 
transferring  uses  into  possession,  he  the  said  C.  D.  may  be  in  the  actual  possessioa 
of  all  and  singular  the  said  premises  above  bargained  and  sold,  with  the  appurte- 
nances, and  be  thereby  enabled  to  take  and  accept  of  a  grant  and  release  of  the 
reversion  and  inheritance  thereof  to  him  and  his  heirs,  to,  for  and  upon  such  uses, 
interests  and  purposes  as  in  and  by  the  said  grant  or  release  shall  be  thereof  di- 
rected or  declared. 

In  witness  whereof,  &c.,  as  in  No.  33. 

RELEASE,    DATED  THE  NEXT  DAT. 

This  indenture,  made  &c.,  between  A.  B.,  of  &c.,  of  the  first  part,  and  C.  D.,  of 
&c.,  of  the  second  part,  witnesseth :  That  the  said  party  of  the  first  part,  for  and 
in  consideration  of  the  sum  of ,  to  him  in  hand  paid,  at  or  before  the  en- 
sealing and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  confessed  and 
acknowledged,  hath  granted,  bargained,  sold,  aliened,  released  and  confirmed,  and 
by  these  presents  doth  grant,  bargain,  sell,  alien,  release  and  confirm  unto  the  said 
party  of  the  second  part,  (in  his  actual  possession  now  being  by  virtue  of  a  bar- 
gain and  sale  to  him  thereof  made  for  one  whole  year,  by  indenture  bearing  date 
the  day  next  before  the  enseaUng  of  these  presents,  and  by  force  of  the  statute 
made  for  transferring  uses  into  possession,)  and  to  his  heirs  and  assigns  forever, 
all  piere  set  out  the  description,]  and  the  reversion  and  reversions,  remainder  and 


APPENDIX  OF  FORMS.  601 

remainders,  rents,  issues  and  profits  thereof,  and  every  part  thereof  with  the  ap- 
purtenances; and  also  all  the  estate,  right,  title,  interest,  property,  claim  and  de- 
mand whatsoever,  in  law  or  equity,  of  him  the  said  party  of  the  first  part,  of,  in 
and  to  the  same,  and  every  part  and  parcel  thereof,  with  the  appurtenances :  To 
have  and  to  hold  all  and  singular  the  said  premises  above  in  and  by  these  presents 
released  and  confirmed,  and  every  part  and  parcel  thereof  with  the  appurtenances, 
unto  the  said  party  of  the  second  part,  his  heirs  and  assigns,  to  his  and  their  own 
proper  use  and  behoof,  forever :  [or  to  and  for  such  uses,  intents  and  purposes  as 
are  hereinafter  mentioned,  to  wit :  &c.] 

The  covenants  may  be  set  out  here  as  in  a  full  covenant  deed,  or  such  of  them 
as  are  required,  No.  40. 

Note.     1  R.  S.  739,  §  142.     Id.  727.     Of  Uses  and  Trusts. 

It  is  only  necessary  to  have  the  acknowledgment  or  proof  of  the  release,  and 
that  alone  is  recorded.  The  admission  of  the  lease  in  the  release  estops  parties 
from  denying  it.     (Carver  v.  Jackson,  4  Peters,  1,  88.) 

The  lease  and  release  were  considered  as  one  instrument  in  all  the  New  York 
fee  bills.     (2  R.  S.  637,  §  28.     2  R.  L.  14.     2  Greenl.  246.) 

For  form  of  lease  and  release,  see  2  Black.  Com.  Appendix,  No.  2,  §§  1  and  2, 
where  that  mode  of  conveyance  is  adopted  for  a  marriage  settlement. 


No.  60. 
DEED  OF  EXCHANGE  OF  LANDS,  OF  AN  ESTATE  IN  FEE  SIMPLE,  FOR  A  LI^E 

ESTATE. 

This  indenture,  made  the day  of ,  186. .,  between  A.  B.,  of 

&c.,  of  the  first  part,  and  C.  D.,  of  &c.,  of  the  second  part :  Whereas  the  said  party 
of  the  first  part  is  seised  in  fee  simple  of  lot  No.  10,  in  Turner's  patent,  in  the  town 
of  Salem,  in  the  county  of  Washington ;  and  whereas,  the  said  C.  D.  is  seised  in 
fee  simple  of  lot  No.  11,  in  the  same  patent,  adjoining  said  lot  No.  10 ;  and  whereas, 
the  said  A.  B.  and  C.  D.  have  agreed  to  exchange  with  each  other  the  aforesaid 
premises  in  fee  simple :  Now  therefore,  for  the  end  and  purpose  aforesaid,  this 
indenture  witnesseth,  that  for  and  in  consideration  of  the  grant  and  conveyance 
hereinafter  made  by  the  said  C.  D.  to  the  said  A.  B.,  his  heirs  and  assigns ;  and  in 
consideration  of  one  dollar  in  hand  paid  by  the  said  C.  D.  at  or  before  the  sealing 
and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  confessed  and  ac- 
knowledged, the  said  party  of  the  first  part  hath  granted,  bargained  and  sold,  and 
by  these  presents  doth  grant,  bargain  and  sell  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns,  the  said  lot  No.  10,  in  Turner's  patent  aforesaid,  together 
with  the  appurtenances.  To  have  and  to  hold  the  said  lot  No.  10,  to  him  the  said 
party  of  the  second  part,  his  heirs  and  assigns  forever.  And  the  said  party  of  the 
first  part  doth  for  himself,  his  heirs,  executors  and  administrators,  covenant  and 
agree  to  and  with  the  said  party  of  the  second  part,  his  heirs,  executors  and  ad- 
ministrators, [here  insert  such  covenants  as  the  party  of  the  first  part  is  to  give.] 
And  this  indenture  further  witnesseth  :  That  for  and  in  consideration  of  the  said 
grant  and  conveyance  of  the  said  lot  No.  10,  by  the  said  party  of  the  first  part  to 
the  said  party  of  the  second  part ;  and  also  for  and  in  consideration  of  one  dollar 
to  him  the  said  party  of  the  second  part  paid  by  the  said  party  of  the  first  part,  at 
or  before  the  seaUng  and  dehvery  of  these  presents,  the  receipt  whereof  is  hereby 
confessed  and  acknowledged,  the  said  party  of  the  second  part  hath  granted,  bar- 


602  APPENDIX  OF  FORMS. 

gained  and  sold,  and  by  these  presents  doth  grant,  bargain  and  sell  unto  the  said 
party  of  the  first  part,  his  heirs  and  assigns  forever,  the  said  lot  No.  11  iu  the  said 
patent  liereinbeforo  mentioned.  To  have  and  to  hold  tlie  same,  with  the  appurte- 
nances, to  the  said  party  of  the  first  part,  his  heirs  and  assigns  forever.  And  the 
said  party  of  the  second  part  doth  for  himself,  his  heirs,  executors  and  administra- 
tors, covenant  and  agree  to  and  with  the  said  party  of  the  first  part,  his  heirs,  ex- 
ecutors and  administrators,  [here  insert  such  covenants  as  are  agreed  upon.] 

In  witness  whereof  the  said  parties    have  hereto  interchangeably    set   their 
hands  and  seals,  the  day  and  year  first  above  written. 

Sealed  and  dehvered  in  A.  B.     [l.  s.] 

presence  of  C.  D.    [l.  s.] 

E.  F.  Acknowledged  or  proved. 

Note.    See  3  Newnam's  Conveyancer,  63  et  seq. 


No.  61. 


A  SHORT  MORTGAGE,  WITH  A  COVENANT  TO  PAY,  BUT  WITHOUT  ANY  POWER 

OF  SALE. 

This  indenture,  made  the day  of ,  in  the  year  one  thousand 

eight  hundred  and ,  between ,  of  the  first  part,  and , 

of  the  second  part : 

Whereas,  the  said ,  justly  indebted  to  the  said  part of  the  second 

part,  in  the  sum  of ,  lawful  money  of  the  United  States,  secured  to  be 

paid  by certain  bond  or  obligation  bearing  even  date  with  these  presents. 

in  the  penal  sum  of ,  lawful  money  as  aforesaid,  conditioned  for  the  pay- 
ment of  the  said  first  mentioned  sum, ,  as  by  the  said  bond  may  appear. 

Now  this  indenture  witnesseth :  That  the  said  part of  the  first  part,  for  the 

better  securing  the  payment  of  the  said  sum  of  money  according  to  the  condition 

of  the  said  bond,  and  in  consideration  of  one  dollar,  to in  hand  paid,  the 

receipt  whereof  is  hereby  acknowledged,  ha. . . .  granted,  bargained,  sold,  aliened, 
released,  conveyed  and  confirmed,  and  by  these  presents  do ... .  grant,  bargain,  sell, 

alien,  release,  convey  and  confirm  unto  the  said  part of  the  second  part, 

heirs  and  assigns  forever,  all Together  with  the  tenements,  heredita- 
ments and  appurtenances  thereunto  belonging  or  in  anywise  appertaining.     And 

also,  all  the  estate,  right,  title,  interest, property,  possession,  claim  and 

demand  whatsoever,  of  the  said  part ....  of  the  first  part,  of,  in  and  to  the  same, 
and  the  reversion  and  reversions,  remainder  and  remainders,  rents,  issues  and 
profits  thereof:  to  have  and  to  hold  the  hereinbefore  granted,  bargained  and  de- 
scribed premises,  with  the  appurtenances  unto  the  said  part. . . .  of  the  second  part, 

heirs  and  assigns,  to their  only  proper  use,  benefit  and  behoof 

forever.     Provided  always,  that  if  the  said  part. ...  of  the  first  part, heirs, 

executors  or  administrators,  shall  pay  unto  the  said  part ....  of  the  second  part, 
executors,  administrators  or  assigns,  the  money  mentioned  in  the  condi- 
tion of  the  said  bond,  with  the  interest  as  therein  specified,  then  these  presents  and 
the  said  bond  shall  cease,  determine,  and  be  null  and  void. 

And  the  said ,  heirs,  executors  and  administrators,  do. . . .  covenant 


APPENDIX  OF  FORMS.  603 

and  agree  to  pay  unto  the  said  part ....  of  the  second  part, executors, 

administrators  or  assigns,  the  said  sum  of  money,  and  interest  as  mentioned  above, 
and  expressed  in  the  condition  of  the  said  bond. 

In  witness  whereof,  the  parties  to  these  presents  have  hereunto  interchangeably 
set  their  hands  and  seals,  the  day  and  year  first  above  written. 

Sealed  and  delivered  in 
presence  of 

Note.  If  the  mortgage  be  given  for  the  whole  or  any  part  of  the  purchase 
money,  it  is  desirable  to  insert  immediately  after  the  description  of  the  premises, 
something  like  the  following :  Being  the  same  premises  this  day  conveyed  by  the 

Raid to  the  said ,  and  these  presents  are  given  to  secure  the 

payment  of  the  whole  [or  part]  of  the  consideration  money  of  said  premises — [then 
proceed  as  in  other  cases.] 

Note  (1.)  A  mortgage,  given  for  the  whole  or  part  of  the  purchase  money,  has 
priority  over  all  other  liens,  whether  precedent  or  subsequent.  (Willard's  Eq.  Jur. 
437.  1  R.  S.  749,  §  5.)  The  fact  that  it  was  given  for  the  consideration  money, 
or  a  part  of  it,  may  be  proved  by  parol ;  but  still,  it  is  advisable  to  insert  the  fact 
in  the  instrument,  to  prevent  subsequent  dispute. 

(2.)  A  mortgage  may  be  given  to  secure  future  advances  or  responsibilities ;  and 
in  such  case  the  consideration  clause  should  be  so  modified  as  to  express  the  fact 
truly.  (Willard's  Eq.  Jur.  437.  Shirvaa  v.  Caig,  7  Cranch,  34.)  It  may  be  stated 
thus  :  "  For  and  in  consideration  of  one  hundred  dollars,  to  the  party  of  the  first 
part  in  hand  paid,  at  or  before  the  ensealing  and  delivery  of  these  presents,  by  the 
party  of  the  second  part,  and  also  to  secure  the  payment  of  one  thousand  dollars, 
which  tlie  party  of  the  second  part  has  agreed  to  advance  hereafter  to  and  for  the 
use  of  the  said  party  of  the  first  part,  in  annual  installments  of  one  hundred  dollars 
each,  hath  granted,  bargained,"  &c. 

If  the  fact  be  stated  any  where  in  the  mortgage,  it  is  notice  to  subsequent  incum- 
brancers ;  and  if  not  so  stated,  it  is  good  against  suVjsequent  incumbrancers,  with 
notice. 


No.  62. 
COMMON  BOND,  USUALLY  ACCOxMPANTING  A  MORTGAaE. 

Know  all  men  by  these  presents,  that  I,  A.  B.,  of  the  town  of ,  in  the 

county  of ,  and  state  of  New  York,  am  held  and  firmly  bound  unto  C.  D., 

of,  (fee,  in  the  penal  sum  of  five  hundred  dollars,  lawful  money  of  the  United  States, 
to  be  paid  to  the  said  C.  D.,  his  executors,  administrators  or  assigns ;  for  which 
payment,  well  and  truly  to  be  made,  I  bind  myself,  my  heirs,  executors  and  ad- 
ministrators, firmly  by  these  presents. 

Sealed  with  my  seal,  and  dated  this, day  of  September,  186. .. 

The  condition  of  this  obligation  is  such  that  if  the  above  bounden  A.  B.,  his  heirs, 
executors  or  administrators,  shall  well  and  truly  pay,  or  cause  to  be  paid,  unto  the 
above  named  C.  D.,  his  executors,  administrators  or  assigns,  the  just  and  full  sum 
of  two  hundred  and  fifty  dollars,  in  one  year  from  date,  with  interest,  then  the 
above  obHgation  to  be  void ;  otherwise,  to  remain  in  full  force  and  virtue. 

Sealed  and  deHvered  in  A.  B.     [l.  s,] 

presence  of 
0.  D.  Acknowledgment  as  in  No.  1. 


604  APPENDIX  OF  FORMS. 

Note  (1.)  A  bond  is  required  to  be  under  the  hand  and  seal  of  the  obhgor;  and 
a  seal  is  an  impression  on  wax,  or  wafer,  or  some  adhesive  substance,  except  it  be 
the  seal  of  a  court,  a  public  officer  or  a  corporation.  (Bank  of  Rochester  v.  Gray, 
2  Hill,  227.  3  R.  S.  687,  5th  ed.  L.  of  1848,  ch.  1'j7,  §  1.)  But  this  does  not 
extend  to  private  seals,  which  must  be  made  as  heretofore,  on  wafer,  wax  or  some 
similar  substance.     (Id.) 

(2.)  The  penalty  of  a  bond  is  usually  in  double  the  amount  of  the  condition ;  but 
a  bond  is  good  and  can  be  enforced  if  the  condition  and  penalty  are  for  the  same 
sum.    Interest  can  be  recovered  beyond  the  penalty.     (Lyon  v.  Clark,  4  Seld.  148.) 

(3.)  The  above  form  of  bond  is  the  one  in  general  use.  But  the  executors  or 
administrators,  though  not  named,  can,  on  the  death  of  the  obligee,  enforce  pay- 
ment; and  the  heirs,  executors  or  administrators,  are  liable  to  pay  it.  on  the  death 
of  the  obligor,  if  the}'  have  assets,  whether  they  are  named  in  the  bond  or  not. 
(1  R.  S.  739,  §  141.     3  R.  S.  30,  5th  ed.     Id.  197,  174.) 

(4.)  A  mortgage  which  does  not  contain  a  power  of  sale  cannot  be  foreclosed  at 
law,  by  advertisement,  under  the  statute ;  but  can  only  be  foreclosed  in  a  court  of 
equity.  (2  R.  S.  545,  §  1.  3  id.  859,  5th  ed.  Doolittle  t-.  Lewis,  7  John.  Ch.  45. 
Jackson  v.  Lockwood,  7  Wend.  458.  Benedict  v.  Oilman,  4  Paige,  58.  Cox  v. 
Wheeler,  7  id.  248.     Ingraham  v.  Baldwin,  5  Seld.  45 ;  1  Barb.  9,  8.  C.) 


No.  63. 
MORTGAGE  WITHOUT  BOND,  BUT  CONTAINING  A  POWER  OF  SALE  AND  COV- 
ENANT TO  PAY  THE  DEBT. 

This  indenture,  made  the day  of ,  in  the  year  one  thousand 

eight  hundred  and ,  between ,  of  the  first  part,  and , 

of  the  second  part; 

Whereas, 

Now  this  indenture  witnesseth :  That  the  said  part of  the  first  part,  for  the 

better  securing  the ,  according  to  the  true  intent  and  meaning  thereof, 

and  also  for  and  in  consideration  of  the  sum  of  one  dollar,  to in  hand 

paid,  by  the  said  part ....  of  the  second  part,  at  or  before  the  ensealing  and  de- 
livery of  these  presents,  the  receipt  whereof  is  hereby  acknowledged,  ha. . .  granted, 
bargained,  "sold,  aliened,  remised,  released,  conveyed  and  confirmed,  and  by  these 

presents  do grant,  bargain,  sell,  alien,  remise,  release,  convey  and  confirm  unto 

the  said  part of  the  second  part,  and  to heirs  and  assigns  forever,  all 

Together  with  all  and  singular  the  tenements,  hereditaments  and 

appurtenances  thereunto  belonging,  or  in  anywise  appertaining,  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents,  issues  and  profits  thereof.     And 

also,  all  the  estate,  right,  title,  interest, property,  possession,  claim  and 

demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said  part. ...  of  the  first 
part,  of,  in  and  to  the  same,  and  every  part  and  parcel  thereof,  with  the  appurte- 
nances ;  to  have  and  to  hold  the  above  granted,  bargained  and  described  premises, 

with  the  appurtenances,  unto  the  said  part. ...  of  the  second  part, heirs 

and  assigns,  to their  own  proper  use,  benefit  and  behoof  forever.  Pro- 
vided always,  and  these  presents  are  upon  this  express  condition,  that  if 

And  if  default  shall  be  made  in  the  payment  of  the  said  sum  of  money  above 
mentioned,  or  the  interest  that  may  grow  due  thereon,  or  of  any  part  thereof,  that 
then  and  from  thenceforth  it  shall  be  lawful  for  the  said  part ....  of  the  second 

part, executors,  administrators  and  assigns,  to  enter  into  and  upon  all 

and  singular  the  premises  hereby  granted,  or  intended  so  to  be,  and  to  sell  and 
dispose  of  the  same,  and  all  benefit  and  equity  of  redemption  of  the  said  part .... 


APPENDIX  OF  FORMS.  gQg 

of  the  first  part, heirs,  executors,  administrators  or  assigns  therein  at 

pubhc  auction  according  to  the  act  in  such  case  made  and  provided.  And  as  'the 
attorney  of  the  said  part  of  the  first  part,  for  that  purpose  by  these  presents 

duly  authorized,  constituted  and  appointed,  to  make  and  dehver  to  the  purchaser 
or  purchasers  thereof,  a  good  and  sufficient  deed  or  deeds  of  conveyance  in  the  law 
for  the  same,  m  fee  simple,  and  out  of  the  money  arising  from  such  sale,  to  retain 
the  principal  and  interest  which  shall  then  be  due  on  the  said  . .  together 

with  the  costs  and  charges  of  advertisement  and  sale  of  the  said  premises  render- 
mg  the  overplus  of  the  purchase  money,  (if  any  there  shall  be,)  unto  the  said 
....  heirs,  executors,  administrators  or  assigns;  which  sale,  so  to  be  made 

Shall  forever  be  a  perpetual  bar,  both  in  law  and  equity,  against  the  said  part        ' 

of  tne  first  part, heirs  and  assigns,  and  all  other  persons  claiming  or  to 

claim  the  premises  or  any  part  thereof,  by,  from  or  under them  or  either 

of  them.  ' 

In  witness  whereof,  the  parties  to  these  presents  have  hereunto  set  their  hands 
and  seals,  the  day  and  year  first  above  written. 

Sealed  and  delivered  in 
presence  of 


No.  64. 


MOBTGAQE  WITH  BOND  AND  POWER  OF  SALE,  PROVIDINO  THAT  THE  WHOLE 
SHALL  BECOME  DUE  ON  FAILURE  TO  PAY  AN  INSTALLMENT. 

This  indenture,  made  the day  of ,  in  the  year  one  thousand 

eight  hundred  and between of  the  first  part,  and 

of  the  second  part:  Whereas,  the  said justly  indebted  to  the  said  part  ' ' 

Of  the  second  part,  in  the  sum  of lawful  money  of  the  United  States! 

^cured  to  be  paid  by certain  bond  or  obligation  bearing  even  date  with 

these  presents,  in  the  penal  sum  of lawful  money  as  aforesaid,'  condition- 
ed for  the  payment  of  the  said  first  mentioned  sum  of lawful  money  aa 

aforesaid,  to  the  said  part ....  of  the  second  part,  or  assigns,  on  the 

^^l"^ ^^"^^  ^i"  be  in  the  year  of  our  Lord  one  thousand  eight  hundred 

*°^ *°<^  the  interest  thereon,  to  be  computed  from  . .  at  and 

after  the  rate  of  ....  per  cent,  per  annum,  and  to  be  paid  *       And  it 

IS  thereby  expressly  agreed,  that  should  any  default  be  made  in  the  payment  of  the 
said  interest,  or  of  any  part  thereof,  on  any  day  whereon  the  same  is  made  paya- 
ble, as  above  expressed,  and  should  the  same  remain  unpaid  and  in  arrear  for  the 

'fr  ".■ ^T'  ^^''^  ^"^  ^'■°°'  thenceforth,  that  is  to  say,  after  the  lapse 

°^*^^,'**^ ^^y''  the  aforesaid  principal  sum  of with  all  arrear 

age  of  mterest  thereon,  shaU,  at  the  option  of  the  said  part. . .  of  the  second  part 
^i;;*' ';';;.'''  *'.^'f\b^«7«  ^^^  ^e  due  and  payable  immediately  thereafter,' 
although  the  period  above  hmited  for  the  payment  thereof  may  not  then  have 
expired,  any  thing  therein  before  contained  to  the  contrary  thereof  in  any  wise 

T7!t'"fl'  •  •  •  ■  V  : '  ''  ^^  *'  '''^  ^^°^  ""'  ^^%^^'°-.  -°d  ti^e -ndi- 

tion  thereof,  reference  being  thereunto  had,  may  more  fully  appear 

Now  this  indenture  witnesseth,  that  the  said  part. . .  of  the  fii^st  part,  for  the 
better  securing  the  payment  of  the  said  sum  of  money  mentioned  in  the  condition 


GOG  APPENDIX  OF  FORMS. 

of  the  said  bond  or  obligation,  with  interest  thereon,  according  to  the  true  intent 
and  meaning  thereof,  and  also,  for  and  in  consideration  of  the  sum  of  one  dollar  to 
in  hand  paid  by  the  said  part. .  of  the  second  part,  at  or  before  the  en- 
sealing and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowledged, 
ha. . . .  granted,  bargained,  sold,  aliened,  released,  conveyed  and  confirmed,  and  by 
these  presents  do. . . .  grant,  bargain,  sell,  alien,  release,  convey  and  confirm  unto 

the  said  part ....  of  the  second  part,  and  to and  assigns  forever,  all 

Together  with  all  and  singular  the  tenements,  hereditaments  and  appurtenances 
thereunto  belonging  or  in  any  wise  appertaining,  and  the  reversion  and  reversions, 
remainder  and  remainders,  rents,  issues  and  profits  thereof.  And  also,  all  the  es- 
tate, right,  title,  interest, ,  property,  possession,  claim  and  demand  what- 
soever, as  well  in  law  as  in  equity,  of  the  said  part of  the  first  part,  of,  in  and 

to  the  same,  and  every  part  and  parcel  thereof,  with  the  appurtenances.  To  have 
and  to  hold  the  above  granted  and  described  premises,  with  the  appurtenances, 

unto  the  said  part. ...  of  the  second  part, and  assigns,  to their 

own  proper  use,  benefit  and  behoof,  forever. 

Provided  always,  and  these  presents  are  upon  this  express  condition,  that  if  the 

paid  part. ...  of  the  first  part shall  well  and  truly  pay  unto  the  said 

part. . .  of  the  second  part, or  assigns,  the  said  sum  of  money  mentioned 

in  the  condition  of  the  said  bond  or  obligation,  and  the  interest  thereon,  at  the 
time  and  in  the  manner  mentioned  in  the  said  condition,  according  to  the  true  in- 
tent and  meaning  thereof,  that  then  these  presents,  and  the  estate  hereby  granted, 

shall  cease,  determine  and  be  void.     And  the  said for do. . . . 

covenant  and  agree  to  pay  unto  the  said  part ....  of  the  second  part, or 

assigns,  the  said  sum  of  money  and  interest,  as  mentioned  above,  and  expressed 
in  the  condition  of  the  said  bond.  And  if  default  shall  be  made  in  the  payment  of 
the  said  sum  of  money  above  mentioned,  or  the  interest  that  may  grow  due  there- 
on, or  of  any  part  thereof,  that  then  and  from  thenceforth,  it  shall  be  lawful  for  the 

said  part. ...  of  the  second  part and  assigns,  to  enter  into  and  upon  all 

and  singular  the  premises  hereby  granted,  or  intended  so  to  be,  and  to  sell  and 
dispose  of  the  same,  and  all  benefit  and  equity  of  redemption  of  the  said  part. . . . 

of  the  first  part or  assigns  therein,  at  public  auction,  accordmg  to  the 

act  in  such  case  made  and  provided.  And  as  the  attorney  of  the  said  part ....  of 
the  first  part,  for  that  purpose  by  these  presents  duly  authorized,  constituted  and 
appointed,  to  make  and  deliver  to  the  purchaser  or  purchasers  thereof,  a  good  and 
sufficient  deed  or  deeds  of  conveyance  in  the  law  for  the  same,  in  fee  simple, 
and  out  of  the  money  arising  from  such  sale  to  retain  the  principal  and  interest 
which  shall  then  be  due  on  the  said  bond  or  obligation,  together  with  the  costs 
and  charges  of  advertisement  and  sale  of  the  same  premises,  rendering  the  overplus 

of  the  purchase  money,  (if  any  there  shall  be,)  unto  the  said of  the  first 

part, or  assigns ;  which  sale,  so  to  be  made,  shall  forever  be  a  perpetual 

bar,  both  in  law  and  equity,  against  the  said  part ....  of  the  first  part, 

and  assigns,  and  all  other  persons  claiming  or  to  claim  the  premises,  or  any  part 
thereof,  by,  from  or  under them,  or  either  of  them. 

In  witness.  &c. 


APPENDIX  OF  FORMS.  6O7 


No.  65. 

MORTGAGE  WITH  BOND  AND  POWER  OF  SALE,  WITH  COVENANT  TO  INSURE 

AGAINST  FIRE,  AND  TO  ASSIGN  THE  POLICY  TO  MORTGAGEE. 

This  indenture,  made  the day  of ,  in  the  year  one  thousand 

eight  hundred  and ,  between ,  of  the  first  part,  and , 

of  the  second  part : 

Whereas,  the  said ,  justly  indebted  to  the  said  part of  the  second 

part,  in  the  sum  of ,  lawful  money  of  the  United  States, secured 

to  be  paid  by certain  bond  or  obligation,  bearing  even  date  with  these  pres- 
ents, in  the  penal  sum  of lawful  money  as  aforesaid,  conditioned  for  the 

payment  of  the  said  first  mentioned  sum, ,  as  by  the  said  bond  or  obhga- 

tion,  and  the  condition  thereof,  reference  being  thereunto  had,  may  more  fully 
appear. 

Now  this  indenture  witnesseth :  That  the  said  part of  the  first  part,  for  the 

better  securing  the  payment  of  the  said  sum  of  money  mentioned  in  the  condition 
of  the  said  bond  or  obligation,  with  interest  thereon,  according  to  the  true  intent 
and  meaning  thereof,  and  also,  for  and  in  consideration  of  the  sum  of  one  dollar,  to 

in  hand  paid  by  the  said  part of  the  second  part,  at  or  before  the 

ensealing  and  dehvery  of  these  presents,  the  receipt  whereof  is  hereby  acknowl- 
edged, ha granted,  bargained,  sold,  aliened,  released,  conveyed  and  confirmed, 

and  by  these  presents  do grant,  bargain,  sell,  alien,  release,  convey  and  con- 
firm unto  the  said  part of  the  second  part,  and  to and  assigns  for- 
ever, all 

Together  with  all  and  singular  the  tenements,  hereditaments  and  appurtenances 
thereunto  belonging  or  in  anywise  appertaining,  and  the  reversion  and  reversions, 
remainder  and  remainders,  rents,  issues  and  profits  thereof;  and  also,  all  the  estate, 

right,  title,  interest, property,  possession,  claim  and  demand  whatsoever, 

as  well  in  law  as  in  equity,  of  the  said  part of  the  first  part,  of,  in  and  to  the 

same,  and  every  part  and  parcel  thereof,  with  the  appurtenances :  to  have  and  to 
hold  the  above  granted  and  described  premises,  with  the  appurtenances,  unto  the 

said  part of  the  second  part, and  assigns,  to their  own 

proper  use,  benefit  and  behoof,  forever. 

Provided  always,  and  these  presents  are  upon  this  express  condition,  that  if  the 

said  part of  the  first  part, ,  shall  well  and  truly  pay  unto  the  said 

part of  the  second  part, or  assigns,  the  said  sum  of  money  mentioned 

in  the  condition  of  the  said  bond  or  obligation,  and  the  interest  thereon,  at  the 
time  and  in  the  manner  mentioned  in  the  said  condition,  according  to  the  true  in- 
tent and  meaning  thereof,  that  then  these  presents,  and  the  estate  hereby  granted 

shall  cease,  determine  and  be  void.     And  the  said ,  for do ... . 

covenant  and  agree  to  pay  unto  the  said  part of  the  second  part, 

or  assigns,  the  said  sum  of  money,  and  interest,  as  mentioned  above,  and  expressed 
in  the  condition  of  the  said  bond.  And  if  default  shall  be  made  in  the  payment  of 
the  said  sum  of  money  above  mentioned,  or  the  interest  that  may  grow  due  thereon 
or  of  any  part  thereof,  that  then  and  from  thenceforth,  it  shall  be  lawful  for  the 

paid  part of  the  second  part, and  assigns,  to  enter  into  and  upon  all 

and  singular  the  premises  hereby  granted,  or  intended  so  to  be,  and  to  sell  and  dis- 


608  APPENDIX  OF  FORMS. 

pose  of  the  same,  and  all  benefit  and  equity  of  redemption  of  the  said  part of 

the  first  part, or  assigns,  therein,  at  public  auction,  according  to  the  act 

in  such  case  made  and  provided :  and  as  the  attorney  of  the  said  part of  the 

first  part,  for  that  purpose  by  these  presents  duly  authorized,  constituted  and  ap- 
pointed, to  make  and  deliver  to  the  purchaser  or  purchasers  thereof,  a  good  and 
sufficient  deed  or  deeds  of  conveyance  in  the  law  for  the  same,  in  fee  simple,  and 
out  of  the  money  arising  from  such  sale,  to  retain  the  principal  and  interest  which 
ehall  then  be  due  on  the  said  bond  or  obligation,  together  with  the  costs  and  charges 
of  advertisement  and  sale  of  the  same  premises,  rendering  the  overplus  of  the  pur- 
chase money,  (if  any  there  shall  be,)  unto  the  said ,  of  the  first  part, 

or  assigns ;  which  sale,  so  to  be  made,  shall  forever  be  a  perpetual  bar, 

both  in  law  and  equity,  against  the  said  part of  the  first  part, and 

assigns,  and  all  other  persons  claiming  or  to  claim  the  premises,  or  any  part  thereof, 

by,  from  or  under them,  or  either  of  them. 

And  it  is  also  agreed  by  and  between  the  parties  to  these  presents,  that  the  said 

part of  the  first  part,  shall  and  will  keep  the  buildings,  erected  and  to  to  be 

erected  upon  the  lands  above  conveyed,  insured  against  loss  and  damage  by  fire, 

by  insurers,  and  in  an  amount  approved  by  the  said  part of  the  second  part, 

and  assign  the  policy  and  certificates  thereof  to  the  said  part of  the  second 

part ;  and  in  defiiult  thereof,  it  shall  be  lawful  for  the  said  part of  the  second 

part,  to  effect  such  insurance,  and  the  premium  and  premiums  paid  for  eflecting  the 
same  shall  be  a  lien  on  the  said  mortgaged  premises,  added  to  the  amount  of  the 
said  bond  or  obligation,  and  secured  by  these  presents,  and  payable  on  demand, 
with  interest  at  the  rate  of per  cent  per  annum. 

In  witness,  &c. 

•  Note.  If  this  be  made  to  a  corporation,  the  blanks  for  the  mortgagee  should  be 
filled  with  "successors." 


No.  66. 


MOKTGAQE  TO  EXECUTORS,  WITH  BOND  AND  POWER  OF  SALE,  AND  COVE- 
NANT  TO  PAY  THE  DEBT. 

This  indenture,  made  the day  of ,  in  the  year  one  thousand 

eight  hundred  and ,  between ,  of  the  first  part,  and , 

execut. ...  of  the  last  will  and  testament  of ,  deceased,  of  the  second 

part 

Whereas  the  said justly  indebted  to  the  said  part of  the  second 

part,  in  the  sum  of lawful  money  of  the  United  States  of  America,  secured 

to  be  paid  by certain  bond  or  obligation  bearing  even  date  with  these 

presents,  in  the  penal  sum  of lawtul  money  as  aforesaid,  conditioned  for 

the  payment  of  the  said  first  mentioned  sum ,  as  by  the  said  bond  or 

obligation,  and  the  condition  thereof,  reference  being  thereunto  had,  may  more 

fiilly  appear. 

Now  this  indenture  witnesseth :  That  the  said  part of  the  first  part,  for  the 

better  securing  the  payment  of  the  said  sum  of  money  mentioned  in  the  condition 
of  the  said  bond  or  obligation,  with  interest  thereon,  according  to  the  true  intent 


APPENDIX  OF  FORMS.  609 

and  meaning  thereof,  and  also  for  and  in  consideration  of  the  sum  of  one  dollar, 

to in  hand  paid,  by  the  said  part of  the  second  part,  at  or  before  the 

ensealing  and  delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowledged, 
ha. . .  granted,  bargained,  sold,  aliened,  released,  conveyed  and  confirmed,  and  by 

these  presents  do grant,  bargain,  sell,  alien,  release,  convey  and  confirm  unto 

the  said  part of  the  second  part,  and  the  survivors  and  survivor,  and 

their  assigns  forever,  all 

Together  with  all  and  singular  the  tenements,  hereditaments  and  appurtenances 
thereunto  belonging,  or  in  anywise  appertaining,  and  the  reversion  and  reversions, 
remainder  and  remainders,  rents,  issues  and  profits  thereof.     And  also,  all  the 

estate,  right,  title,  interest, property,  possession,  claim  and  demand 

whatsoever,  as  well  in  law  as  in  equity,  of  the  said  part of  the  first  part,  of, 

in  and  to  the  same,  and  every  part  and  parcel  thereof,  with  the  appurtenances; 
to  have  and  to  hold  the  above  granted,  bargained  and  described  premises,  with  the 
appurtenances,  unto  the  said  part. . .  of  the  second  part,  the  survivors  and  survivor, 
and their  assigns,  to  their  only  proper  use,  benefit  apd  behoof  forever. 

Provided  always,  and  these  presents  are  upon  this  express  condition,  that  if  the 

said  part of  the  first  part, heirs,  executors  or  administrators,  shall 

well  and  truly  pay  unto  the  said  part, .  of  the  second  part,  the  survivors  or  survivor, 

or their  assigns,  the  said  sura  of  money  mentioned  in  the  condition  of  the 

said  bond  or  obligation,  and  the  interest  thereon,  at  the  time,  and  in  the  manner 
mentioned  in  the  said  condition,  according  to  the  true  intent  and  meaning  thereof, 
that  then  these  presents,  and  the  estate  hereby  granted,  shall  cease,  determine  and 
be  null  and  void.  And  the  said ,  for ,  heirs,  executors  and  ad- 
ministrators, do ... .  covenant  and  agree  to  pay  unto  the  said  part....  of  the 

second  part, the  survivors  or  survivor,  or assigns,  the  said  sum 

of  money,  and  interest,  as  mentioned  above,  and  expressed  in  the  condition  of  the 
said  bond. 

And  if  default  shall  be  made  in  the  payment  of  the  said  sura  of  money  above 
mentioned,  or  the  interest  that  may  grow  due  thereon,  or  of  any  part  thereof,  that 

then  and  from  thenceforth  it  shall  be  lawful  for  the  said  part of  the  second 

part,  the  survivors  or  survivor,  and their  assigns,  to  enter  into  and  upon  all 

and  singular  the  premises  hereby  granted,  or  intended  so  to  be,  and  to  sell  and 
dispose  of  the  same,  and  all  benefit  and  equity  of  redemption  of  the  said  part .... 

of  the  fiist  part, heirs,  executors,  administrators  or  assigns  therein,  at 

public  auction,  according  to  the  act  in  such  case  made  and  provided.  And  as  the 
attorney  or  attorneys  of  the  said  part. ...  of  the  first  part,  for  that  purpose  by 
these  presents  duly  authorized,  constituted  and  appointed,  to  make  and  deliver  to 
the  purchaser  or  purchasers  thereof,  a  good  and  sufficient  deed  or  deeds  of  convey- 
ance in  the  law  for  the  same,  in  fee  simple,  and  out  of  the  money  arising  from  such 
sale,  to  retain  the  principal  and  interest  which  shall  then  be  due  on  the  said  bond 
or  obligation,  together  with  the  costs  and  charges  of  advertisement  and  sale  of  the 
said  premises,  rendering  the  overplus  of  the  purchase  money,  (if  any  there  shall 
be,)  unto  the  said ,  of  the  first  part, heirs,  executors,  adminis- 
trators or  assigns ;  which  sale,  so  to  be  made,  shall  forever  be  a  perpetual  bar,  both 
in  law  and  equity,  against  the  said  part. ...  of  the  fi.rst  part, heirs  and 

Will.— 39 


610  APPENDIX  OF  FORMS. 

assigns,  and  all  other  persons  claiming  or  to  claim  the  premises  or  any  part  thereof 
by,  from  or  under them,  or  any  of  them. 

In  witness  whereof,  the  parties  to  these  presents  have  hereunto  set  their  hands 
and  seals,  the  day  and  year  first  above  written. 

Sealed  and  delivered  in 
presence  of 


No.  67. 


MORTGAGE  BY^AND  TO  A  CORPORATION,  WITH  BOND,  POWER  OF  SALE  AND 
COVENANT  TO  PAY  THE  DEBT. 

This  indenture,  made  the day  of ,  in  the  year  one  thousand 

eight  hundred  and ,  between  The  Albany  City  Bank,  of  the  city  of 

Albany,  of  the  first  part,  and  The  Commercial  Bank  of  Saratoga  Springs,  of  the 
second  part: 

Whereas,  the  said  Albany  City  Bank  is  justly  indebted  to  the  said  party  of  the 

second  part,  in  the  sum  of ,  lawful  money  of  the  United  States,  secured 

to  be  paid  by certain  bond  or  obligation  bearing  even  date  with  these 

presents,  in  the  penal  sum  of lawful  money  as  aforesaid,  conditioned  for 

the  payment  of  the  said  first  mentioned  sum  of ,  as  by  the  said  bond  or 

obligation,  and  the  condition  thereof,  reference  being  thereunto  had,  may  more 
fully  appear. 

Now  this  indenture  witnesseth :  That  the  said  party  of  the  first  part,  for  the 
better  securing  the  payment  of  the  said  sum  of  money  mentioned  in  the  conditioa 
of  the  said  bond  or  obligation,  with  interest  thereon,  according  to  the  true  intent 
and  meaning  thereof,  and  also,  for  and  in  consideration  of  the  -sum  of  one  dollar  to 
it  in  hand  paid  by  the  said  party  of  the  second  part,  at  or  before  the  ensealing  and 
delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowledged,  hath 
granted,  bargained,  sold,  aliened,  released^  conveyed  and  confirmed,  and  by  these 
presents  doth  grant,  bargain,  sell,  alien,  release,  convey  and  confirm  unto  the  said 
party  of  the  second,  and  to  its  successors  in  office,  and  assigns  forever,  all 

Together  with  all  and  singular  the  tenements,  hereditaments  and  appurtenances 
thereunto  belonging  or  in  anywise  appertaining,  and  the  reversion  and  reversions, 
remainder  and  remainders,  rents,  issues  and  profits  thereof;  and  also,  all  the  estate, 

right,  title,  interest, property,  possession,  claim  and  demand  whatsoever, 

as  well  in  law  as  in  equity,  of  the  said  party  of  the  first  part,  of,  in  and  to  the 
same,  and  every  part  and  parcel  thereof,  with  the  appurtenances :  to  have  and  to 
hold  the  above  granted  and  described  premises,  with  the  appurtenances,  unto  the 
said  party  of  the  second  part,  its  successors  and  assigns,  to  its  and  their  own  proper 
use,  benefit  and  behoof  forever. 

Provided  always,  and  these  presents  are  upon  this  express  condition,  that  if  the 
said  party  of  the  first  part,  or  its  successors  in  office,  shall  well  and  truly  pay  unto 
the  said  party  of  the  second  part,  its  successors  in  office  or  assigns,  the  said  sum  of 
money  mentioned  in  the  condition  of  the  said  bond  or  obligation,  and  the  interest 
thereon,  at  the  time  and  in  the  manner  mentioned  in  the  said  condition,  according 
to  the  true  intent  and  meaning  thereof,  that  then  these  presents,  and  the  estate 
hereby  granted,  shall  cease,  determine  and  be  void.    And  the  said  party  of  the 


APPENDIX  OF  FORMS.  611 

first  part,  for  itself  and  its  successors  in  office  doth  covenant  and  agree  to  pay  unto 
the  said  party  of  the  second  part,  its  successors  in  office,  or  assigns,  the  said  sum 
of  money  and  interest,  as  mentioned  above,  and  expressed  in  the  condition  of  the 
said  bond.  And  if  default  shall  be  made  in  the  payment  of  the  said  sum  of  money 
above  mentioned,  or  the  interest  that  may  grow  due  thereon,  or  of  any  part  there- 
of, that  then  and  from  thenceforth,  it  shall  be  lawful  for  the  said  party  of  the  second 
part,  its  successors  in  office  and  assigns,  to  enter  into  and  upon  all  and  singular  the 
premises  hereby  granted,  or  intended  so  to  be,  and  to  sell  and  dispose  of  the  same, 
and  all  benefit  and  equity  of  redemption  of  the  said  party  of  the  first  part,  its 
successors  in  office  or  assigns  therein,  at  public  auction,  according  to  the  act  in 
such  case  made  and  provided.  And  as  the  attorney  of  the  said  party  of  the  first 
part,  for  that  purpose  by  these  presents  duly  authorized,  constituted  and  ap- 
pointed, to  make  and  deliver  to  the  purchaser  or  purchasers  thereof,  a  good  and 
sufficient  deed  or  deeds  of  conveyance  in  the  law  for  the  same,  in  fee  simple, 
and  out  of  the  money  arising  from  such  sale  to  retain  the  principal  and  interest 
which  shall  then  be  due  on  the  said  bond  or  obligation,  together  with  the  costs 
and  charges  of  advertisement  and  sale  of  the  same  premises,  rendering  the  overplus 
of  the  purchase  money,  (if  any  there  shall  be,)  unto  the  said  party  of  the  first  part, 
its  successors  in  office  or  assigns ;  which  sale,  so  to  be  made,  shall  forever  be  a 
perpetual  bar,  both  in  law  and  equity,  against  the  said  party  of  the  first  part,  its 
successors  in  office  and  assigns,  and  all  other  persons  claiming  or  to  claim  the 
premises,  or  any  part  thereof,  by,  from  or  under them,  or  either  of  them. 

In  witness  whereof,  the  said  party  of  the  first  part,  by  a  resolution  of  its  board 
of  directors,  granted  the day  of ,  186. .,  hath  caused  its  corpo- 
rate seal  to  be  hereunto  affixed,  and  these  presents  to  be  subscribed  by  their  presi- 
dent and  cashier,  the  day  and  year  first  above  written. 

Corporate  seal. 

C.  D.,  Cashier.  A.  B.,  President 


No.  68. 


DEED  OF  MORTGAGED  PREMISES,  ON  FORECLOSURE  BY  ADVERTISEMENT 
UNDER  THE  STATUTE,  WHEN  THE  PURCHASE  IS  MADE  BY  A  STRANGER 
TO  THE  MORTGAGE. 

This  indenture,  made  the day  of ,  in  the  year  one  thousand 

eight  hundred  and ,  between  A.  B.,  of ,  of  the  first  part,  and 

(^■'D.,o{ ,  of  the  second  part :     Whereas,  E.  F.  by  a  certain  indenture  of 

mortgage  bearing  date  the day  of ,  in  order  to  secure  the  pay- 
ment to  the  said  A.  B.  of  the  sum  of in  the  manner  therein  speci- 
fied, and  for  and  in  consideration  of  the  sum  of  one  dollar  to  him,  the  said  E.  F. 
well  and  truly  paid  by  the  said  A.  B.,  did  grant,  bargain,  sell,  alien,  release,  convey 
and  confirm  to  the  said  A.  B.,  his  executors,  administrators  and  assigns,  all  that 
certain  piece  or  parcel  of  land,  [describe  the  premises,]  wath  the  appurtenances; 
subject  to  a  proviso,  in  the  said  mortgage  contained,  that  the  same  should  be  void 
on  the  payment  by  the  said  E.  F.,  his  executors,  administrators  or  assigns,  of  the 
^^^  of in  the  manner  particularly  specified  in  the  condition  of  a  certain 


612  APPENDIX  OF  FORMS. 

bond,  or  writing  obligatory,  bearing  even  date  with  the  said  mortgage,  reference 
being  thereto  had  will  more  fully  and  at  large  appear;  and  which  said  indenture 
of  mortgage  contained  a  special  power,  authorizing  the  said  A.  B.,  his  heirs,  exec- 
utors, administrators  or  assigns,  if  default  should  be  made  in  the  payment  of  the 
said  sum  of  money  mentioned  in  the  condition  of  the  said  bond  or  obhgation,  with 
ihe  interest,  or  of  any  part  thereof,  to  sell  and  dispose  of  the  said  mortgaged  prem- 
ises, or  any  part  thereof,  at  public  auction  ;  and  to  make  and  deliver  to  tlie  pur- 
chaser or  purchasers  thereof  good  and  sufficient  deed  or  deeds  of  conveyance  in  the 
law  for  the  same,  in  fee  simple;  and  whereas  the  said  indenture  of  mortgage  has 
been  duly  recorded,  according  to  law,  as  by  the  said  indenture  of  mortgage,  and 
the  record  thereof,  and  of  the  power  therein  contained,  reference  being  thereto 
had  more  fully  and  at  large  appears. 

\_Ifit  has  been  assigned,  say  :  and  the  same  has  been  duly  assigned  to  the  said 
party  of  the  first  part  by  the  said  party  to  whom  the  said  bond  and  mortgage  were 
given,  and  which  said  assignment  has  been  duly  recorded,  as  by  ihe  record  thereof 
more  fully  and  at  large  appears.] 

And  whereas,  default  was  made  in  the  payment  of  the  said  sum  of  money  in- 
tended to  be  secured  by  the  said  indenture  of  mortgage,  whereupon  the  said  mort- 
gaged premises  hereinafter  particularly  described,  were,  on  the day  of 

,  sold  at  public  auction,  to  the  said  party  of  the  second  part,  for  the  sum 

of ,  being  the  highest  sum  bid  for  the  same,  public  notice  having  been 

previously  given  of  such  sale  by  advertisement,  inserted  and  published  for  twelve 

weeks,  once  in  each  week,  successively,  in  a  public  newspaper  entitled  the 

printed  in  the  town  of in  the  county  in  which  the  mortgaged  premises 

are  situated,  a  copy  of  which  was,  for  twelve  weeks  prior  to  the  time  therein  spe- 
cified for  such  sale,  duly  affixed  on  the  outward  door  of  the  court  house  in  the 

town  of being  the  building  in  which  the  county  courts  of  said  county 

are  directed  to  be  held  ;  and  the  said  party  of  the  first  part  has  caused  a  copy  of 
said  printed  notice  or  advertisement,  to  be  duly  served  on  all  persons  having  any 
claim  upon  the  said  premises,  as  required  by  the  act  of  May  7,  1844. 

Now  therefore,  this  indenture  witnesseth :  That  the  said  party  of  the  first  part, 
for  and  in  consideration  of  the  sum  so  bid  as  aforesaid,  to  him  in  hand  paid  by  the 
said  party  of  the  second  part,  at  or  before  the  ensealing  and  delivery  of  these  pres- 
ents, the  receipt  whereof  is  hereby  confessed  and  acknowledged,  hath  granted, 
bargained,  sold,  aliened,  released  and  confirmed,  and  by  these  presents  doth  grant, 
bargain,  sell,  alien,  release  and  confirm  unto  the  said  party  of  the  second  part,  and 
to  his  heirs  and  assigns  forever,  all ;  [here  describe  the  premises  sold ;]  together 
with  all  and  singular  the  tenements,  hereditaments  and  appurtenances  thereunto 
belonging  or  in  any  wise  appertaining,  as  the  same  are  described  and  conveyed  in 
and  by  the  said  indenture  of  mortgage ;  and  also,  all  the  estate,  right,  title,  inter- 
est property,  claim  and  demand  whatsoever,  both  in  law  and  equity,  of  the  said 
E.  F.  the  mortgagor,  as  well  as  of  the  said  party  of  the  first  part,  of,  in  and  to  the 
above  described  premises,  with  the  appurtenances,  as  fully  to  all  intents  and  pur- 
poses as  the  said  party  of  the  first  part  hath  power  and  authority  to  grant  and  sell 
the  same,  by  virtue  of  the  said  indenture  of  mortgage,  and  of  the  statute  in  such 
case  made  and  provided,  or  otherwise.  To  have  and  to  hold  the  said  above  men- 
tioned  and  described  premises,   with  the  appurtenances  thereof,  unto  the  said 


APPENDIX  OF  FORMS.  $13 

party  of  the  second  part,  his  heirs  and  assigns,  to  the  sole  and  only  proper  use, 
benefit  and  behoof  of  the  said  party  of  the  second  part,  his  heirs  and  assigns 
forever. 

In  witness,  &c. 

Sealed  and  delivered  in 
presence  of 

Notes.  (1.)  The  recitals  of  the  mortgage  in  the  deed  should  be  according  to 
the  language  in  the  mortgage ;  which  may  diflfer  from  the  above. 

(2.)  See  2  R.  S.  545 ;  L.  of  1844,  ch.  346,  p.  529. ;  3  R.  S.  859,  5th  ed.,  as  to 
mode  of  foreclosure  at  law. 

(3.)  The  power  of  sale  contained  in  a  mortgage  is  a  power  coupled  with  an  in- 
terest, and  does  not  die  with  the  mortgagor ;  nor  can  it  be  revoked  by  him,  as  a 
mere  naked  power  may  be.  (Bergen  v.  Bennett,  1  Gaines'  Cas.  in  Error,  13,  16 
et  seq.  Knapp  v.  Alvord,  10  Paige,  209.  Osgood  v.  Franklin,  2  John.  Ch.  19. 
S.  C.  14  John.  527.) 

(4.)  The  mortgagee,  or  his  assigns,  may  bid  in  the  premises  on  a  statute  foreclo- 
sure, and  in  such  case  no  deed  is  required  to  be  given.  (3  R.  S.  861,  862,  5th  ed. 
Jackson  v.  Golden,  4  Go  wen,  266.  Slee  v.  Manhattan  Co.  1  Paige,  48.  L.  of  1838, 
ch.  266,  §  8.)  The  documental  evidence  of  the  sale  and  purchase,  as  well  as  of  tha 
publication  and  service  of  notice,  must  be  recorded  with  the  county  clerk  of  tha 
county  where  the  lands  lie.     (Id.) 


No.  69. 

SATISFACTION  OF  MORTGAGE. 

A  mortgage,  bearing  date  the day  of eighteen  hundred  and 

executed  by recorded  in  the  clerk's  office  of  the 

county  of in  book of  mortgages,  page ,  on  the 

day  of ,  and  the  bond  accompanying  said  mortgage  have  been  paid,  or 

otherwise  satisfied  and  discharged. 

Dated  the day  of ,  18 

In  presence  of  Acknowledgment  or  proof,  as  in  other  oases. 

Note.  See  1  R.  S.  761,  §  28 ;  3  id.  57,  §  60,  5th  ed.  The  certificate  need  not 
be  under  seal,  nor  need  there  be  a  subscribing  witness,  if  it  be  acknowledged ;  but 
if  not  acknowledged  at  the  time,  there  must  be  a  subscribing  witness,  by  whom  it 
must  be  proved.  It  must  be  recorded  at  length  by  the  clerk,  and  a  minute  of  dis- 
charge entered  on  the  page  of  the  book  containing  the  record  of  the  mortgage.  It 
may  be  given  by  the  mortgagee,  his  personal  representatives  or  assigns.  If  given 
by  the  assignee,  the  assignment  should  be  recorded  also.  If  by  executors  or  ad- 
ministrators, a  certificate  by  the  surrogate  that  the  party  discharging  the  mortgaga 
is  such  executor  or  administrator,  may  be  insisted  on  by  the  clerk. 


COVENANTS. 


For  the  covenants  usually  inserted  in  a  full  covenant  deed,  see  No.  40 ;  for  a 
covenant  against  grantor's  own  act,  see  No.  36  ;  and  for  various  other  covenants, 
see  Agreements,  passim. 


gl4  APPENDIX  OF  FORMS. 

No.  70. 
GENERAL  FORM  OF  A  COVENANT  IN  A  DEED. 
And  the  said  party  of  the part,  for  himself,  his  heirs,  executors  and  ad- 
ministrators, doth  hereby  covenant  to  and  with  the  said  party  of  the part, 

his  heirs  and  assigns,  [or  his  executors,  administrators  and  assigns,  aa  the  case  re- 
quires,} that  &c. 


No.  71. 
FROM  SEVERAL  PERSONS  TO  ONE. 
And  the  said  A.  B.,  C.  D.,  and  E.  F.,  for  themselves  severally  and  respectively, 
and  for  their  several  and  respective  heirs,  executors  and  administrators,  and  not 
jointly,  nor  the  one  for  the  other  or  others  of  them,  nor  for  the  heirs,  executors, 
administrators,  nor  for  the  acts  or  deeds  of  the  other  or  others  of  them,  do  and  each 
and  every  of  them  doth  hereby  covenant,  promise  and  grant  to  and  with  the  said 
L.  M.,  his  heirs  and  assigns,  [or  his  heirs,  executors  and  administrators,]  by  these 
presents  in  manner  following. 


No.  72. 
COVENANT  BY  LESSEE  TO  PAY  ALL  TAXES  AND   ASSESSMENTS  ON  THE  DE- 
MISED PREMISES. 

And  the  said  party  of  the  second  part,  for  himself,  his  executors,  administrators 
and  assigns,  hereby  covenants  to  and  with  the  said  party  of  the  first  part,  his  heirs 
and  assigns,  that  he,  the  said  party  of  the  second  part,  shall  and  will  at  his  and 
their  proper  costs  and  charges,  bear,  pay  and  discharge  all  such  taxes,  duties  and 
assessments  whatsoever  as  shall  or  may,  during  the  said  term  hereby  granted,  be 
charged,  assessed  or  imposed  upon  the  said  demised  premises. 

Notes.  (1.)  The  executors  and  administrators,  as  well  as  heirs  and  devisees,  are 
liable  for  the  debts  of  the  deceased,  whether  they  are  named  in  the  obligation  or  not. 
The  executors  or  administrators  are  primarily  liable,  and  after  them  the  heirs  and 
devisees,  if  lands  come  to  them  by  descent  or  devise.  (Butts  v.  Genung,  5  Paige, 
254.  Schermerhorn  v.  Barhydt,  9  id.  28.  Wambaugh  v.  Gates,  11  id.  505.  2  R.  S. 
447  et  seq.     3  id.  746,  753,  5th  ed.) 

(2.)  No  particular  technical  words  are  necessary  to  make  a  covenant ;  but  any 
words  which  import  an  agreement  between  the  parties  to  a  deed,  will  suffice  for 
that  purpose.  (Hallet  v.  Wylie,  3  John.  48.  Bull  v.  Follett,  5  Cowen,  170.)  The 
word  "  Covenant"  is  always  the  appropriate  and  expressive  term,  and  is  most  fre- 
quently used. 

(3.)  In  conveyances  made  since  1830,  no  covenant  is  implied,  whether  such  con- 
veyance contains  special  covenants  or  not.  (1  R.  S.  738,  §  140.  Hone  v.  Fisher, 
2  Barb.  Ch^  569.     Kinney  v.  Watts,  14  Wend.  38.) 


No.  73. 

COVENANT  TO  REPAIR,  DURING  THE  TERM. 

And  it  is  further  covenanted  that  the  said  party  of  the  second  part,  his  executors, 

administrators  and  assigns,  or  some  or  one  of  them,  at  their  own  proper  costs  and 

charges,  shall  and  will  from  time  to  time,  and  all  time  during  the  continuance  of  the 


APPENDIX  OF  FORMS.      '  615 

term  hereby  demised,  when,  where  and  as  often  as  need  or  occasion  shall  be  or 
require,  cause  the  buildings  and  fences  on  the  said  premises  to  be  well  and  suffi- 
ciently repaired  and  amended. 


No.  74. 

COVENANT  TO  CONDUCT  A  FARM  IN  A  GOOD  HUSBANDLIKB  MANNER. 

■  And  it  is  further  covenanted,  that  the  said  party  of  the  second  part,  his  execu- 
tors, administrators  and  assigns,  shall  and  will  at  all  times  during  the  continuance 
of  the  said  term,  manage  and  conduct  the  said  farm  in  a  good  husbandlike  manner, 
and  according  to  the  usual  course  of  husbandry  in  the  neighborhood ;  that  he  will 
not  commit  any  waste  or  damage,  or  suffer  any  to  be  done ;  that  he  will  keep  the 
fences  and  buildings  on  the  premises  in  good  repair,  reasonable  wear  thereof  and 
damage  by  the  elements  excepted. 


No.  75. 
COVENANT  TO  RENEW  THE  LEASE  AT  THE  EXPIRATION  OF  THE  TERM. 

And  the  said  party  of  the  first  part,  for  himself  his  heirs  and  assigns,  covenants 
to  and  with  the  said  party  of  the  second  part,  his  executors,  administrators  or  as- 
signs, that  if  the  said  party  of  the  second  part  shall  well  and  truly  keep  and  per- 
form the  agreements  herein  contained,  he,  the  said  party  of  the  first  part,  his  heirs 
and  assigns,  will  make  and  execute  unto  the  said  party  of  the  second  part  a  new 
lease,  similar  in  all  respects  to  this,  and  to  run  for  the  same  period,  of  the  premises 
aforesaid,  upon  due  request  and  apphcation  of  the  said  party  of  the  second  part  made 
within  ihirty  days  prior  to  the  expiration  of  the  said  term  granted  by  these  pres- 
ents, [except,  here  state  exceptions,  if  there  be  any,] 


No.  76. 


COVENANT  THAT  LESSEE  MAY  HAVE  A  RIGHT  OF  WAT,  THROUGH  LESSOR'S 
LAND  TO  THE  PUBLIC  ROAD. 

And  inasmuch  as  the  premises  hereby  demised  do  not  adjoin  any  pubhc  high- 
way, but  are  wholly  surrounded  by  the  lands  of  the  said  party  of  the  first  part,  or 
of  strangers,  the  said  party  of  the  first  part,  for  himself  and  his  heirs  and  assigns, 
doth  hereby  grant  to  the  said  party  of  the  second  part,  his  executors,  administra- 
tors and  assigns,  during  the  said  term,  a  right  of  way  in  and  over  a  certain  strip  of 
land  of  the  said  party  of  the  first  part,  leading  fi-om  the  highway  to  the  lands  here- 
by demised,  and  which  is  described  as  follows:  [here  set  out  the  description  of  the 
land  intended  as  the  private  way  :]  over  which  way  the-  said  party  of  the  second 
part,  his  servants  and  tenants,  may  freely  pass  and  repass,  on  foot  or  with  horses 
oxen,  cattle,  sheep,  swine,  beasts  of  burden,  wagons,  carts,  sleighs  or  other  vehi- 
cles or  carriages  whatever,  from  the  said  highway  to  the  said  demised  premises,  at 
all  times  during  the  said  term. 


616  APPENDIX  OF  FORMS. 


EMINENT  DOMAIN. 

No.  77. 

FORM  OF  A  RECORD  OF  THE  ASSESSMENT  OF  DAMAGES. 

(Adams  v.  Saratoga  and  Washington  Rail  Road  Company,  11  Barb.  414-417.) 

"  In  the  matter  of  the  Saratoga  and  Washington  Rail  Road  Company,  and  cer- 
tain owners  of  lands  on  the  line  of  their  rail  road,  for  appraisement  of  damages. 

Washington  county,  ss.  Whereas  by  virtue  of  the  act  entitled  '  An  act  to  incoi> 
porate  the  Saratoga  and  Washington  Rail  Road  Company,'  passed  May  2,  1834, 
the  said  company  were  empowered,  amongst  other  things,  to  purchase,  receive  and 
hold  such  real  estate  as  might  be  necessary  in  accomphshing  the  objects  for  which 
the  said  incorporation  was  granted,  and  by  their  agents,  surveyors  and  engineers, 
to  enter  upon  and  take  possession  of,  and  use  all  such  land  and  real  estate  as  might 
be  necessary  for  the  construction  and  maintenance  of  the  single  or  double  rail  road 
or  way,  and  the  accommodation  requisite  and  appertaining  thereto,  and  to  receive, 
hold  and  take  all  such  voluntary  grants  and  donations  of  land  and  real  estate,  for 
the  purpose  of  said  road,  as  should  be  made  to  the  said  corporation  to  aid  in  the 
construction,  maintenance  and  accommodation  of  the  said  single  and  double  rail 
road  or  way.  But,  all  lands  or  real  estate  thus  entered  upon  which  were  not  do- 
nations, were  required  to  be  purchased  by  the  said  corporation  -of  the  owner  or 
owners  of  the  same,  at  a  price  to  be  mutually  agreed  upon  between  them.  And 
in  case  of  disagreement  as  to  price,  and  before  making  any  portion  of  said  road  oa 
said  land,  the  said  corporation,  or  the  owner  of  said  land,  might  apply  by  petitioa 
to  the  first  judge  of  the  court  of  common  pleas  of  the  county  in  which  said  land  is 
situated,  who  was  authorized  to  proceed  to  appraise  the  said  lands  and  damages, 
in  the  manner  and  form  directed  in  and  by  the  act  aforesaid.  And  in  case  of  the 
inability  of  said  judge  to  conduct  the  said  proceedings,  any  other  judge  of  the  same 
court,  to  whom  no  reasonable  objections  were  made,  was  thereby  empowered  to 
conduct  the  same,  as  by  the  said  act  to  which  reference  is  hereby  made,  will  more 
fully  appear.  And  whereas,  the  lands  and  real  estate,  hereinafter  described,  are 
necessary  for  the  construction  and  maintenance  of  the  rail  road  of  said  company, 
and  the  accommodations  requisite  and  appurtenant  thereto.  And  the  said  com- 
pany and  John  P.  Adams,  who  is  the  owner  of  the  same,  disagree  as  to  the  prica 
of  the  same.  And  whereas,  the  said  corporation,  before  making  any  portion  of 
said  road  on  said  land,  in  and  by  virtue  of  the  said  act,  and  the  several  acts  amend- 
ing the  same,  did,  on  the  2l6t  day  of  April,  1847,  apply  by  petition  in  the  manner 
directed  by  said  act  of  incorporation,  to  John  McLean,  Esq.,  first  judge  of  the  court 
of  common  pleas  in  the  county  of  Washington,  in  which  said  lands  are  situated; 
•who  thereupon  the  same  day  directed  the  sheriff  of  the  said  county  to  give  public 
notice  in  at  least  one  newspaper  printed  in  said  county,  that  at  some  future  day, 
not  less  than  thirty  days  from  the  first  publication  of  said  notice,  the  clerk  of  said 
county,  and  the  said  judge,  would  proceed  to  draw  at  the  clerk's  office  in  said 
county,  the  names  of  twelve  persons  to  serve  as  a  jury  between  the  said  rail  road 
company  and  the  owners  of  lands  along  and  adjoining  the  line  of  the  rail  road  of 
said  company,  as  then  located  in  the  county  of  Washington,  with  whom  a  disagree- 


APPENDIX  OP  FORMS.  617 

ment  as  to  the  price  of  such  lands  then  existed,  in  appraising  said  lands  and  the 
damages  the  said  owners  thereof  should  individually  sustain  by  reason  of  their  ap- 
propriation to  the  use  of  said  company,  in  the  same  manner  as  the  names  of  the 
persons  were  then  drawn  for  juries  in  courts  of  recoid.  And  whereas,  the  said 
sheriff,  in  pursuance  of  such  directions,  on  the  21st  day  of  April,  did  give  such  pub- 
lic notice  for  more  than  thirty  days,  in  manner  and  form  as  therein  directed,  in  one 
of  the  newsoapers  printed  in  said  county,  called  the  Washington  County  Post,  and 
therein  appointed  the  24th  day  of  May,  1847,  at  ten  o'clock  in  the  forenoon,  at  the 
clerk's  office  of  said  county,  as  the  time  and  place  of  drawing  such  jury ;  at  which 
time  and  place,  the  said  judge  and  Henry  Shepherd,  then  being  the  clerk  of  said 
county,  attended ;  and  in  pursuance  of  such  notice,  drew  the  names  of  twelve  per- 
sons as  such  jury,  in  the  same  manner  as  the  names  of  persons  were  then  author- 
ized by  law  to  be  drawn  for  jurors  in  courts  of  record,  who  were  duly  qualified, 
and  to  whom  no  objections  were  made,  and  neither  of  them  resided  in  any  town 
through  which  the  said  rail  road  passes,  or  was  of  kin  to  any  of  the  said  owners 
claiming  damages,  or  interested  in  the  said  rail  road,  or  of  kin  to  those  who  were 
interested  in  said  rail  road,  or  said  damages.  And  whereas  the  said  judge,  on  the 
6th  day  of  July,  1847,  in  pursuance  of  the  act  entitled  'an  act  in  relation  to  the  ju- 
diciary,' passed  May  12th,  1847,  did  order  that  the  said  matter,  and  all  proceedings 
to  be  had  therein,  be  transferred  to  Martin  Lee,  Esq.,  who  was  elected  to  discharge 
the  duties  of  county  judge  of  said  county,  on  giving  one  day's  notice  of  said  order  • 
which  notice  was  duly  given  as  therein  required.  And  whereas,  the  said  Martin 
Lee  having  taken  jurisdiction  of  said  matter,  did  on  the  15th  day  of  July,  1847,  by 
his  warrant  in  writing,  duly  issued  for  that  purpose,  direct  said  sheriff  to  summon 
said  jury,  and  appoint  the  10th  day  of  August,  1847,  at  the  hotel  kept  by  Mr. 
Washburn  at  Fort  Edward,  in  said  county,  at  11  o'clock  in  the  forenoon,  as  the 
time  and  place  for  said  twelve  persons  to  be  summoned  by  the  said  sheriff,  to  ap- 
pear as  such  jury  ;  at  which  time  and  place,  the  undersigned  judge  appeared,  and 
Daniel  T.  Payn,  Esq.,  sheriff  of  the  said  county,  and  the  said  jury  wno  had  been 
duly  summoned  by  the  said  sheriff  also  appeared,  and  in  the  presence  of  the  parties 
the  said  judge  duly  drew  by  lot  from  the  said  names  of  the  said  twelve  persons  six, 
who  were  quaUfied,  and  were  free  from  all  exceptions,  and  who  were  then  and 
there  duly  sworn  well  and  truly  to  appraise  the  lands  of  certain  owners  situate 
along  and  adjoining  the  line  of  the  rail  road  of  said  company,  as  then  located  in  the 
county  of  Washington,  with  whom  a  disagreement  as  to  the  price  of  such  lands 
then  existed,  and  the  damages  the  said  owners  should  sustain  by  reason  of  the  ap- 
propriation of  said  lands  to  the  use  of  said  company,  and  a  true  verdict  therein 
give  according  to  evidence ;  the  names  of  such  jurors  so  sworn  as  aforesaid,  are 
hereinafter  mentioned. 

And  thereupon  the  said  matter  and  proceedings  were  duly  adjourned  until  the 
22d  day  of  September  then  next,  at  2  o'clock  p.  u.  at  Bordwell's  tavern,  near  Com- 
stock's  landing,  in  the  town  of  Fort  Ann,  in  said  county;  at  which  last  mentioned 
time  and  place,  the  undersigned  judge  appeared,  and  the  said  jurors  and  parties  also 
appeared,  and  such  proceedings  were  thereupon  had  that  the  said  matter  and  pro- 
ceedings were  further  adjourned  until  the  16th  day  of  November  then  next,  at  9 
o'clock  in  the  forenoon,  at  the  Phoenix  hotel  in  the  town  of  Whitehall,  in  the  said 
county ;  at  which  last  mentioned  time  and  place,  the  undersigned  judge  appeared, 


618  APPENDIX  OF  FORMS. 

and  the  said  jurors  and  parties  also  appeared ;  and  the  said  jurors  were  then  and  there 
duly  sworn  well  and  truly  to  appraise  the  lands  of  the  said  John  P.  Adams,  situate 
along  and  adjoining  the  line  of  tlie  rail  road  of  said  company,  as  then  located  in  the 
town  of  Whitehall  in  said  county,  and  the  damages  the  said  John  P.  Adams  should 
sustain  by  reason  of  the  appropriation  of  tlie  said  lands  to  the  use  of  the  said  company, 
and  a  true  verdict  therein  give  according  to  evidence.     And  the  said  jurors  ha\'ing 
heard  the  proofs  and  allegations  of  the  parties,  which  were  delivered  in  open  court, 
and  in  the  presence  of  said  parties,  a  majority  of  said  jurors  so  sworn  as  aforesaid, 
did  then  and  there  on  the  17th  day  of  November,  1847,  duly  make  up  and  deliver 
to  the  said  judge  their  verdict  and  award  in  writing,  appraising  the  said  lands  and 
damages  aforesaid  of  the  said  John  P.  Adams,  at  the  sum  of  $350,00 ;  which  ver- 
dict is  in  the  words  and  figures  following,  viz :  '  In  the  matter  of  the  Saratoga  and 
"Washington  Rail  Road  Company  and  John  P.  Adams.     We  whose  names  are 
hereunto  subscribed,  and  seals  affixed,  being  a  jury  duly  elected,  tried  and  sworn 
before  the  Hon.  Martin  Lee,  judge  of  the  county  courts  in  and  for  the  county  of 
Washington,  in  pursuance  of  the  act  entitled  '  an  act  to  incorporate  the  Saratoga 
and  Washington  Rail  Road  Company,'  to  appraise  the  lands  of  the  said  John  P. 
Adams,  situate  along  and  adjoining  the  line  of  the  rail  road  of  said  company,  as  at 
present  located  in  the  town  of  Whitehall,  in  said  county,  and  the  damages  the  said 
John  P.  Adams  shall  sustain  by  reason  of  the  appropriation  of  said  lands  to  the  use 
of  said  company,  having  heard  the  proofs  and  allegations  of  the  parties,  do,  upon 
our  oaths,  appraise  the  same  at  $350,00  ;  which  said  lands  are  described  as  follows, 
viz :  All  that  certain  piece  of  land  situate  on  the  farm  now  occupied  by  the  said 
Adams,  in  the  town  of  Whitehall,  in  said  county,  and  being  that  part  included 
•within  the  two  outward  lines  of  the  rail  road  of  the  Saratoga  and  Washington  Rail 
Road  Company,  as  surveyed  by  James  B.  Sargent,  engineer,  in  1847,  being  a  strip 
two  rods  in  width  on  each  side  of  the  central  line  of  said  road,  and  containing 
ninety-nine  one  hundredths  of  an  acre  of  land.     Witness  our  hands  and  seals  this 
17th  day  of  November,  1847.     Le  Roy  Morey,  [l.  s.]    C.  V.  K.  Woodworth,  [l.  s.] 
Archibald  Moore,  [l.  a.]     Ansell  Roberson,  [l.  s.]     John  J.  Launouth,  [l.  s.]     Par- 
don Bassett,  [l.  s.]'     And  the  same  was  duly  certified  by  the  said  judge,  and  filed 
in  the  office  of  the  clerk  of  the  said  county.     And  whereas,  due  proof  has  been 
given  to  the  said  judge  within  thirty  days  after  such  assessment,  that  the  amount 
of  the  same  has  been  deposited  to  the  credit  of  the  said  John  P.  Adams,  by  said 
company,  in  the  Bank  of  Whitehall,  being  the  place  directed  by  said  judge  for  such 
deposit;  and  that  all  expenses  have  been  fully  paid,  and  at  least  fourteen  days'  no- 
tice of  the  time  and  place  of  such  assessment,  was  duly  given  to  said  John  P.  Ad- 
ams ;  and  all  the  requirements  of  the  said  acts  having  been  fully  complied  with  on 
the  jiart  of  said  company.     Now,  therefore,  I,  the  said  judge,  in  compliance  with 
said  acts,  do  order  and  decree,  that  the  said  assessments  and  proceedings  be,  and 
the  same  are  in  all  respects,  hereby  ratified  and  confirmed.     To  the  end  that  after 
this  decree  is  recorded  in  the  clerk's  office  of  the  said  county,  the  said  corporation 
shall  be  possessed  of  the  premises  and  real  estate  above  described  in  the  verdict  of 
said  jury,  and  may  enter  upon  and  take  possession  and  use  the  same  for  the  pur- 
poses of  said  rail  road,  agreeably  to  the  provisions  of  the  several  acts  aforesaid.     In 
•witness  whereof,  I  have  hereunto  put  my  hand  and  seal  this  11th  day  of  December, 
A.  D.  1847.    Martin  Lee,  county  judge  of  Washington  county." 


APPENDIX  OP  FORMS.  619 

Ko.  78. 

EXCEPTION  OF  A  RIGHT  OF  WAY  RESERVED  TO  THE  LESSOR  THROUGH  THE 

DEMISED  PREMISES,  TO  ANOTHER  LOT  OF  THE  LESSOR. 

Excepting  and  reserving  in  and  out  of  the  hereby  demised  premises,  to  the  said 
party  of  the  first  part,  his  heirs  and  assigns,  a  right  of  way,  as  well  a  foot  way  as  a 
horse  way,  and  a  way  for  his  and  their  carts,  carriages  and  servants,  in,  out  and 
through  the  hereby  demised  premises,  during  the  said  term,  and  which  said  way  is 
aescribed  as  follows :  [here  set  out  the  description  of  it.] 

Note  to  No.  76  and  78.  If  the  lessor  demises  premises  which  do  not  touch  a 
public  road,  but  are  surrounded  in  whole  by  his  own  land,  the  law  grants  a  way 
of  necessity  through  the  lessor's  land.  The  proper  way,  in  such  a  case,  is  for  the 
lessor,  at  the  time  he  makes  the  lease,  to  designate  a  way  to  the  lessee.  The  same 
principle  applies  when  the  piece  of  land  is  surrounded  in  part  by  the  lands  of  the 
grantor,  and  in  part  by  lands  of  a  third  person.  (Holmes  v.  Seeley,  19  Wend.  507. 
N.  y.  Trust  Co.  V.  Milnor,  1  Barb.  Ch.  354.) 

For  an  exception  and  reservation  of  a  right  of  way,  see  Jackson  v.  Allen,  3 
Cowen,  221. 


LANDLORD  AND  TENANT. 

No.  79. 
LEASE  WITH  SPECIAL  COVENANTS. 

This  indenture,  made  the day  of ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and ,  between ,  of  the  first  part,  and 

,  of  the  second  part.     Witnesseth :  that  the  said  part  of  the  first  part,  for 

and  in  consideration  of  the  rents,  covenants  and  agreements  hereinafter  mentioned, 

reserved  and  contained,  on  the  part  and  behalf  of  the  said  part of  the  second 

P^^^  executors,  administrators  and  assigns,  to  be  paid,  kept  and  per- 
formed, ha granted,  demised  and  to  farm  letten,  and  by  these  presents  do 

grant,  demise  and  to  farm  let,  unto  the  said  part of  the  second  part, 

executors,  administrators  and  assigns,  all 

To  have  and  to  hold  the  said  above  mentioned  and  described  premises,  with  the 
appurtenances,  unto  the  said  part. ...  of  the  second  part, executors,  ad- 
ministrators and  assigns,  from  the day  of ,  one  thousand  eight 

hundred  and ,  for  and  during,  and  until  the  full  end  and  term  of 

thence  next  ensuing,  and  fully  to  be  complete  and  ended,  yielding  and  paying 

therefor  unto  the  said  part. ...  of  the  first  part, heirs  or  assigns,  yearly" 

and  every  year  during  the  said  term  hereby  granted,  the  yearly  rent  or  sum  of 

lawful  money  of  the  United  States  of  America,  in  equal yearly 

payments,  to  wit:  on  the  first  day  of ,  in  each  and  every  of  the  said  years. 

Provided  always,  nevertheless,  that  if  the  yearly  rent  aboved  reserved,  or  any  part 
thereof,  shall  be  behind  or  unpaid  on  any  day  of  payment  whereon  the  same  ought 
to  be  paid  as  aforesaid;  or  if  default  shall  be  made'in  any  of  the  covenants  herein 

contained,  on  the  part  and  behalf  of  the  said  part. ...  of  tiie  second  part, 

executors,  administrators  and  assigns,  to  be  paid,  kept  and  performed,' then  and 


620  APPENDIX  OF  FORMS. 

from  thenceforth  it  shall  and  may  be  lawful  for  the  said  part. ...  of  the  first  part, 

or  assigns,  into  and  upon  the  said  demised  premises,  and  every  part 

thereof,  wholly  to  re-enter  and  remove  all  persons  therefrom,  and  the  same  to  have 

again,  re-possess  and  enjoy,  as  in their  first  and  former  estate,  any  thing 

hereinbefore  contained  to  the  contrary  thereof  in  anywise  notwithstanding.  And 
the  said  part. . . .  of  the  second  part,  for heirs,  executors  and  administra- 
tors, do covenant  and  agree  to  and  with  the  said  part of  the  first  part, 

heirs  and  assigns,  by  these  presents,  that  the  said  part. ...  of  the  second 

part, executors,  administrators  or  assigns,  shall  and  will  yearly  and  every 

year  during  the  said  term  hereby  granted,  well  and  truly  pay,  or  cause  to  be  paid, 

unto  the  said  part ....  of  the  first  part, heirs  or  assigns,  the  said  yearly 

rent  above  reserved,  on  the  days  and  in  manner  limited  and  prescribed  as  aforesaid, 
for  the  payment  thereof,  without  any  deduction,  fraud  or  delay,  according  to  the 

true  intent  and  meaning  of  these  presents.     And  also,  that will  not,  at 

any  time  during  the  tfirm  hereby  granted,  use  or  suffer  to  be  used,  the  said  prem- 
ises or  any  part  thereof,  for  any  business  or  purpose  other  than  that  hereinbefore 
mentioned,  without  the  consent  in  writing  of  the  said  part. ...  of  the  first  part, 

heirs  or  assigns,  first  had  and  obtained  ;  also,  that will  not  let  or 

underlet  the  said  premises  or  any  part  thereof,  nor  assign  these  presents  without 
the  like  written  consent. 

And  also,  that  if  the  yearly  rent  above  reserved,  or  any  part  thereof,  shall  be 
behind  or  unpaid  on  any  day  whereon  the  same  ought  to  be  paid  as  aforesaid,  or 
if  default  shall  be  made  in  any  or  either  of  the  covenants  or  agreements  herein  con- 
tained on  their  part,  then  or  in  either  of  such  cases  it  shall  and  may  be  lawful  for 
the  said  part. ...  of  the  first  part, heirs  or  assigns,  to  re-enter  said  de- 
mised premises,  without  process  of  law,  using  all  necessary  force  therefor  without 
hability  to  prosecution,  and  may  thereupon,  as  the  agent  or  attorney  of  the  parties 
of  the  second  part,  their  executors,  administrators  or  assigns,  hereby  for  that  pur- 
pose irrevocably  constituted  and  appointed,  rent  the  same,  applying  the  avails  first 
to  the  payment  of  the  expenses  of  re-entry,  and  then  to  the  payment  of  the  rent 
and  other  moneys  due  by  these  presents,  and  the  balance,  if  any,  to  pay  over  to 
the  said  part ....  of  the  second  part, executors,  administrators  or  as- 
signs ;  and  also,  that  on  and  after  the day  of next,  previous  to 

the  expiration  of  the  term  hereby  granted, shall  and  will  permit  a  bill  or 

notice  to  be  put  up  on  the  said  premises,  and  there  remain ;  and  shall  and  will  at 
all  reasonable  times  in  the  day,  freely  permit  persons  to  see  and  examine  the  said 
premises,  in  order  to  the  selling  or  renting  of  the  same,  imtil  the  same  be  sold  or 
rented. 

And  it  is  hereby  further  covenanted  and  agreed,  by  and  between  the  said  par- 
ties, that  the  said  party  of  the  first  part  shall,  during  the  said  term,  use  and  em- 
ploy on  the  said  demised  premises,  all  the  dung  and  compost  made  on  the  same 
premises,  and  carry  it  out  and  spread  it  on  the  land  in  a  good  husbandlike 
manner,  on  such  parts  of  the  said  premises  where  it  is  most  needed ;  and  after  the 

expiration  of  the  said  term,  and  until  the day  of ,  it  shall  be 

lawful  for  the  said  party  of  the  second  part,  his  executors,  administrators  and 
assigns,  shall  continue  to  hold  and  enjoy  such  arable  land  on  the  said  premises  as 
is  sowed  to  winter  crops  of  wheat  or  rye,  for  the  purpose  of  having  the  going  off 
crop  of  wheat  or  rye  therefrom ;  and  the  said  party  of  the  second  part  may  use 


APPENDIX  OF  FORMS.  621 

such  part  of  the  barn  on  the  said  premises  as  may  be  necessary  to  secure  and  thrash 
out  said  crops,  [or  such  other  agreement  with  respect  to  the  outgoing  crop  as  shaU 
be  made,  but  be  sure  and  provide  for  it] 

And  that  on  the  last  day  of  the  said  term,  or  other  sooner  determination  of  the 

estate  hereby  granted,  the  said  part. . .  .of  the  second  part, executors, 

administrators  or  assigns,  shall  and  will  peaceably  and  quietly  leave,  surrender  and 

yield  up  unto  the  said  part  ....  of  the  first  part, heirs  or  assigns,  all  and 

singular  the  said  demised  premises. 

And  the  said  part.  ...  of  the  first  part,  for heirs,  executors  and  ad- 
ministrators, do. . . .  covenant  and  agree  to  and  with  the  said  part. ...  of  the  sec- 
ond part, executors,  administrators  and  assigns,  by  these  presents,  that 

the  said  part. ...  of  the  second  part, executors,  administrators  or  assigns, 

paying  the  said  yearly  rent  above  reserved,  and  performing   the  covenants  and 

agreements  aforesaid  on their  part,  the  said  part. . . .  of  the  second  part, 

executors,  administrators  and  assigns,  shall  and  may  at  all  times  durmg 

the  said  term  hereby  granted,  peaceably  and  quietly  have,  hold  and  enjoy  the  said 
demised  premises,  without  any  manner  of  let,  suit,  trouble  or  hinderance  of  or  from 

the  said  part. ...  of  the  first  part, heirs  or  assigns,  or  any  other  person 

or  persons  whomsoever. 

[Here  insert  such  other  special  covenants  as  may  be  agreed  on.  and  insert  a  pro- 
vision in  case  of  the  buildings  being  destroyed  by  fire,  or  the  elements.] 

(See  Covenants.) 

In  witness  whereof,  &c. 

Notes  (1 )  Previous  to  1846  it  was  usual  in  leases  to  reserve  a  right  of  re-entry 
to  the  landlord,  in  case  no  sufficient  distress  could  be  found  on  the  premises  to  sat- 
isfy the  rent  due.  The  act  of  1846,  p.  369,  abolished  distress  for  rent,  and  substi- 
tuted a  fifteen  days'  notice  from  the  landlord,  of  his  intention  to  re-enter,  for  proot 
of  a  want  of  sufficient  distress.  In  leases  made  since  the  abolishing  of  the  remedy 
by  distress,  the  clause  with  respect  to  distress  is  omitted.  (See  Van  Rensselaer  v. 
Snyder,  3  Kernan,  299;  Williams  v.  Porter,  2  Barb.  S.  C.  R.  316.)  _ 

(2  )  If  the  lease  or  grant  be  of  agricultural  land,  and  reserve  a  rent  or  service  ot 
any  kind,  it  is  void  if  it  be  for  a  longer  period  than  twelve  years.     (Constitution, 

(3  )'ln  lieu  of  the  remedy  by  distress,  leases  now  frequently  contain  a  chattel 
mortgage  of  specified  articles,  as  in  No.  79.  To  be  valid  against  creditors  and  sub- 
sequent purchasers,  it  should  be  filed  as  required  by  law.     (L.  ot  1833,  ch.  2<9,  H, 

2,  3.    3  R.  S.  233,  5th  ed.)  •       v ,        ^  •.  •        va 

(4 )  A  parol  lease,  for  a  term  not  exceeding  one  year,  is  valid ;  and  it  is  valid 
though  made  to  take  efi^ect  at  a  future  day.  (2  R.  S.  134,  §  6.  Young  v.  Dake,  1 
Seld.  463.     Taggard  v.  Roosevelt,  2  Smith's  Com.  PI.  R.  100,  overruling  Croswell 

V.  Crane,  7  Barb.  191.)  •     .r      -x       r  xr 

(5)  Amercements  for  the  occupation  of  lands  or  tenements  in  the  city  ot  JNew 
York  which  do  not  particularly  specify  the  duration  of  such  occupation,  are  deemed 
valid 'until  the  1st  day  of  May  next  after  the  possession  under  the  agreement  and 
the  rent  unless  otherwise  expressed,  is  payable  at  the  usual  quarter  days.  (L.  ot 
1820,  p.' 178,  §  4.     1  R.  S.  744,  §  1.     3  id.  34,  5th  ed.) 

(6  )  Gas  fixtures  and  sitting  stools,  when  placed  by  a  tenant  in  a  shop  or  store, 
although  fastened  to  the  building,  are  not  fixtures,  as  between  the  tenant  and  his 
landlorii     (Lawrence  v.  Kemp,  1  Duer,  363.)  ,        ^     ^  r 

(7  )  The  landlord  is  in  no  case  bound  to  repair  unless  by  force  ot  an  express 
covenant  or  contract.  (Howard  v.  Doolittle,  3  Duer,  464.)  Hence  the  necessity 
'•    for  providing  for  all  contingencies  by  appropriate  covenants.   _  _ 

The  lease  should  contain  a  provision  in  relation  to  fixtures,  if  the  parties  wish  to 
have  a  rule  different  from  that  established  by  law. 


622  APPENDIX  OF  FORMS. 


No.  80. 

A  SHORTER  FORM  OF  A  LEASE,  CONTAINING  A  CHATTEL  MORTGAGE  AS  SE- 
CURITY FOR  THE  RENT. 

A  lease,  made  and  executed  between ,  of  the  first  part,  and , 

of  the  second  part,  the day  of ,  in  tlie  year  of  our  Lord  one 

thousand  eight  hundred  and h 

In  consideration  of  the  rents  and  covenants  hereinafter  expressed,  the  said  party 
of  the  first  part  ha. . . .  demised  and  leased,  and  do. . . .  hereby  demise  and  lease  to 
the  said  party  of  the  second  part, the  following  premises,  viz :  [here  in- 
sert a  description  of  the  premises,]  with  the  privileges  and  appurtenances,  for  and 

during  the  term  of ,  from  the ,  which  term  will  end 

And  the  said  party  of  the  second  part,  covenant. .  that  .  .he. .  will  pay  to  the 
party  of  the  first  part,  for  the  use  of  said  premises, rent  of dol- 
lars, to  be  paid 

And  it  is  hereby  agreed,  that  the  said  party  of  the  first  part  shall  have  a  lien  as 
security  for  the  rent  aforesaid  upon  the  following  goods  and  chattels,  to  wit:  [here 
insert  the  property  intended  to  be  mortgaged,]  and  also  upon  all  the  goods,  wares, 
chattels,  implements,  fixtures,  tools  and  other  personal  property  which  are  or  may 
be  put  on  the  said  demised  premises,  and  such  lien  may  be  enforced  on  the  non- 
payment of  any  the  rent  aforesaid,  by  the  taking  and  sale  of  such  property  in  the 
same  manner  as  in  cases  of  chattel  mortgage  on  default  thereof;  said  sale  to  be 
made  upon  six  days'  notice,  posted  upon  the  demised  premises,  and  served  upon 
the  party  of  the  second  part,  or  left  at place  of  residence. 

And  provided  said  party  of  the  second  part  shall  fail  to  pay  said  rent,  or  any 
part  thereof,  when  it  becomes  due,  it  is  agreed  that  said  party  of  the  first  part  may 
sue  for  the  same,  or  re-enter  said  premises,  or  resort  to  any  legal  remedy. 

The  party  of  the part  agree . .  to  pay  all taxes  to  be  assessed 

on  said  premises  during  said  term.  [Here  insert  such  covenants  as  are  agreed 
upon.] 

The  party  of  the  second  part  covenants  that  at  the  expiration  of  said  term,  he 
will  surrender  up  said  premises  to  the  party  of  the  first  part,  in  as  good  conditiou 
as  now,  necessary  wear  and  damage  by  the  elements  excepted. 

Witness  the  hands  and  seals  of  the  said  parties  the  day  and  year  first  above 
written. 

(See  notes  under  No.  79.) 


No.  81. 
A  SHORT  FORM  OP  A  TENANT'S   AGREEMENT,   WITH  THE  CORRESPONDING 
ONE  OF  THE  LANDLORD,  USED   IN  NEW  YORK,  CONTAINING  THE  CROTON 
WATER,  AND  FIRE  CLAUSE,  AND  VARIOUS  OTHER  COVENANTS— ALSO  THE 
AGREEMENT  OF  THE  SURETY  FOR  THE  TENANT. 

landlord's  agreement. 

This  is  to  certify  that have  let  and  rented  unto,  [here  insert  the  name 

of  the  tenant  and  a  description  of  the  premises  rented,]  for  the  term  of 

from  the day  of ,  18. .,  at  the rent  of dol- 
lars, payable,  [here  insert  the  terms  of  payment.] 


APPENDIX  OP  FORMS.  623 

The  teuant. .  promise. .  to  make  punctual  payment  of  the  rent  in  manner  afore* 
said,  and  to  quit  and  surrender  the  premises,  at  the  expiration  of  said  term,  in  as 
good  state  and  condition  as  reasonable  use  and  wear  thereof  will  permit,  damages 
by  the  elements  excepted,  and  engage . .  not  to  let  or  underlet  the  whole  or  any  part 
of  the  said  premises,  without  the  written  consent  of  the  landlord,  under  the  penalty 
of  forfeiture  and  damages ;  and  also  not  to  use  or  oecupy  the  said  premises  for  any 
business  deemed  extra  hazardous,  on  account  of  fire,  without  the  hke  consent,  un- 
der the  like  penalty. 

And  also  to  pay  the  regular  annual  rent  or  charge,  which  is  or  may  be  assessed 
or  imposed  according  to  law,  upon  the  said  premises,  for  the  Croton  water ;  on  or 
before  the  first  day  of  August  in  each  year  during  the  term,  and  if  not  so  paid,  the 
same  to  be  added  to  the  quarter's  rent  then  due. 

And  the  said  tenant  also  agrees  to  permit  the  landlord  or agent,  to 

show  the  said  premises  to  persons  wishing  to  hire  or  purchase,  and  on  and  after 
the  first  day  of  February  next  preceding  the  expiration  of  the  term,  to  place  the 
usual  notice  of  "  to  let"  or  "  for  sale,"  upon  the  walls  or  doors  of  said  premises,  and 
remain  thereon  without  hinderance  or  molestation.  And  also  that  if  the  said  prem- 
ises, or  any  part  thereof,  shall  become  vacant  during  the  said  term,  the  said  land- 
lord or representative  may  re-enter  the  same,  either  by  force  or  otherwise, 

without  being  liable  to  any  prosecution  therefor ;  and  re-let  the  said  premises  as  the 
agent  of  the  said  tenant,  and  receive  the  rent  thereof,  applying  the  same,  first  to 

the  payment  of  such  expense  as may  be  put  to  in  re-entering,  and  then 

to  the  payment  of  the  rent  due  by  these  presents;  and  the  balance  (if  any)  to  be 
paid  over  to  the  said  tenant,  who  shall  remain  Hable  for  any  deficiency. 

And  it  is  further  agreed  between  the  parties  to  these  presents,  that  in  case  the 
premises  above  mentioned  shall  be  partially  damaged  by  fire,  the  same  shall  be  re- 
paired as  speedily  as  possible  at  the  expense  of  the  said  landlord ;  that  in  case  the 
damage  shall  be  so  extensive  as  to  render  the  premises  untenantable,  the  rent  shall 
cease  until  such  time  as  the  same  shall  be  put  in  complete  repair;  but  in  case  of 
the  total  destruction  of  the  premises  by  fire  or  otherwise,  the  rent  shall  be  paid  up 
to  the  time  of  such  destruction,  and  then  and  fi-om  thenceforth,  this  agreement  shall, 
at  the  option  of  the  said  tenant,  cease  and  come  to  an  end. 

[Here  insert  any  other  covenants  which  may  be  desired.] 

Given  under hand. .  and  seal. .  the day  of 18. .. 

tenant's  agreement. 

This  is  to  certify  that have  hired  and  taken  from,  [here  insert  the  aame 

of  the  landlord  and  the  description  of  the  premises,]  for  the  term  of from 

*^« <iay  of ,  18. .,  at  the rent  of dollars, 

P^y^^'® ^^^ hereby  promise. .  to  make  punctual  payment 

of  the  rent  in  manner  aforesaid,  and  to  quit  and  surrender  the  premises  at  the  ex- 
piration of  the  said  term,  in  as  good  state  and  condition  as  reasonable  use  and  wear 
thereof  will  permit,  damages  by  the  elements  excepted,  and  engage  not  to  let  or 
underlet  the  whole  or  any  part  of  the  said  premises,  without  the  written  consent 
of  the  landlord,  under  the  penalty  of  forfeiture  and  damages ;  and  also  not  tc  use 
or  occupy  the  said  premises  for  any  business  deemed  extra  hazardous,  on  account 
of  fixe,  without  the  like  consent,  under  the  like  penalty. 

And  also  to  pay  the  regular  annual  rent  or  charge,  which  is  or  may  be  assessed 


624  APPENDIX  OF  FORMS. 

or  imposed  according  to  law,  upon  the  said  premises,  for  the  Croton  water ;  on  or 
before  the  first  day  of  August,  in  each  year  during  the  term,  and  if  not  so  paid,  the 
same  shall  be  added  to  the  quarter's  rent  then  due. 

And also  agree  to  permit  the  landlord  or agent,  to  show  the 

8aid  premises  to  persons  wishing  to  hire  or  purchase,  and  on  and  after  the  first  day 
of  February  next  preceding  the  expiration  of  the  term,  to  place  the  usual  notice 
gf  "to  let"  or  "for  sale,"  upon  the  walls  or  doors  of  said  premises,  and  remain 
thereon  without  hinderance  or  molestation.  And  also,  that  if  the  said  premises  or 
any  part  thereof,  shall  become  vacant  during  the  said  term,  the  said  landlord,  or 

representatives  may  re-enter  the  same,  either  by  force  or  otherwise, 

without  being  liable  to  any  prosecution  therefor ;  and  re-let  the  said  premises  as 
the  agent  of  the  said  tenant,  and  receive  the  rent  thereof,  applying  the  same,  first 

to  the  payment  of  such  expenses  as may  be  put  to  in  re-entering,  and 

then  to  the  payment  of  tlie  rent  due  by  these  presents;  and  the  balance  (if  any) 
to  be  paid  over  to  the  tenant,  who  shall  remain  liable  for  any  deficiency. 

And  it  is  further  agreed  between  the  parties  to  these  presents,  that  in  case  the 
premises  above  mentioned  shall  be  partially  damaged  by  fire,  the  same  shall  be 
repaired  as  speedily  as  possible,  at  the  expense  of  the  said  landlord ;  that  in  case 
the  damage  shall  be  so  extensive  as  to  render  the  premises  untenantable,  the  rent 
shall  cease  until  such  time  as  the  same  shall  be  put  in  complete  repair ;  but  in  case 
of  the  total  destruction  of  the  premises  by  fire  or  otherwise,  the  rent  shall  be  paid 
up  to  the  time  of  such  destruction,  and  then  and  from  thenceforth  this  agreement 
shall,  at  the  option  of  the  said  tenant,  cease  and  come  to  an  end. 

[Here  insert  the  same  covenant  as  is  contained  in  the  counterpart.] 

Given  under  my  hand  and  seal  &c. 

In  consideration  of  the  letting  of  the  premises  above  described,  and  for  the  sum 

of  one  dollar hereby  become  surety  for  the  punctual  payment  of  the 

rent,  and  performance  of  the  covenants,  in  the  above  written  agreement  mentioned, 

to  be  paid  and  performed  by ,  and  if  any  default  shall  be  made  therein, 

hereby  promise  and  agree  to  pay  unto ,  such  sum  or  sums  of 

money  as  will  be  sufficient  to  make  up  such  deficiency,  and  fially  satisfy  the  con- 
ditions of  the  said  agreement,  without  requiring  any  notice  of  non-payment,  or 
proof  of  demand  being  made. 

Given  under  ........  hand. .  and  seal. .  the day  of ,  18. .. 

(See  notes  under  No.  79.) 

No.  82. 

A  SHORT  FORM  OF  A  LANDLORD'S  AGREEMENT  FOR  A  LEASE  OF  A  SINGLE 

ROOM,  IN  A  TENEMENT  OF  THE  LANDLORD. 

This  is  to  certify  that  I  have  this  day  let  and  rented  unto  E.  F.,  room  No.  3,  on 

the  second  floor  of  my  tenement  or  house  known  as  No in street, 

in  the  city  of  [or  village  of] ,  with  the  privileges  of  using  the  front  and 

rear  stairs  for  ingress  and  egress,  and  of  using  the  privy  in  the  rear,  for  one  year, 

to  commence  on  the day  of ,  at  the  yearly  rent  of dollars, 

payable  quarterly. 

Witness  my  hand  and  seal  this day  of 18 

In  presence  of  A.  B.    [l.  s.] 

(See  notes  under  No.  790 


APPENDIX  OF  FORMS. 


625 


TENANT'S  AGREEMENT  ON  ACCEPTING  THE  SAME. 
This  is  to  certify,  that  I  have  hired  and  taken  from  A.  B.  room  No.  3,  on  the 

second  floor  of  his  tenement  or  house  known  as  No ,  in street  in  the 

city  of  [or  village  of  ] ,  with  the  appurtenances,  with  the  privilege  of 

using  the  front  and  rear  stairs  for  ingress  and  egress,  and  of  using  the  privy  in  the 

rear,  for  the  term  of  one  year,  to  commence  the day  of ,  at  the  yearly 

^^°*  °^ payable  quarterly.     And  I  do  hereby  covenant  and  promise  to 

make  punctual  payment  of  the  rent  in  manner  aforesaid,  except  the  premises  be- 
come untenantable  from  fire  or  any  other  cause,  when  the  rent  is  to  cease.  And 
I  do  further  promise  to  quit  and  surrender  the  premises  at  the  expiration  of  the 
term  in  as  good  state  and  condition  as  reasonable  use  and  wear  thereof  will  permit, 
damage  by  the  elements  excepted,  t 

Given  under  my  hand  sad  seal  the day  of 186 . .. 

In  presence  of  jj_  jp     j-^^^  g  j 

Note.    If  other  covenants  are  desired,  they  can  be  inserted  at  the  t.  the  form 
of  the  most  usual  of  which  will  be  found  in  the  preceding  forms. 


MAREIAGE  SETTLEMENTS. 

No.  83. 
ANTE-NUPTIAL  SETTLEMENT  OF  PERSONAL  PROPERTY. 

This  indenture  of  three  parts,  made  and  concluded  this day  of 

1860,  between  Jane  Doe,  of  the  town  of ,  in  the  county  of and 

state  of  New  York,  of  the  first  part,  John  Doe,  of  the  same  place,  of  the  second 

part,  and  James  Jackson,  of  the  town  of ,  in  the  county  of ,  and 

state  aforesaid,  of  the  third  part,  witnesseth  :  That  whereas,  a  marriage  is  intend- 
ed, by  the  permission  of  God,  to  be  shortly  had  and  solemnized  between  the  said 
parties  of  the  first  and  third  part,  and  the  said  party  of  the  first  part  is  possessed  of 
certain  personal  estate,  to  wit :  the  sum  of  five  thousand  dollars,  secured  by  the  bond 
and  mortgage  of  one  L.  M.,  [here  describe  it.]  Now  therefore,  in  consideration 
of  the  premises,  and  of  one  dollar  paid  by  the  said  John  Doe  to  the  said  party  of 
the  first  part,  the  receipt  whereof  is  hereby  confessed  and  acknowledged,  the  said 
party  of  the  first  part  doth  hereby  assign,  transfer  and  set  over  to  the  said  party 
of  the  second  part  the  aforesaid  bond  and  mortgage,  and  the  moneys  due  and  to 
become  due  thereon,  to  hold  by  him  upon  the  special  trusts,  and  the  uses  and  pur- 
poses hereinafter  expressed,  to  wit : 

First  That  until  the  solemnization  of  the  said  marriage,  the  said  party  of  the 
second  part  shaU  pay  over  to  the  said  party  of  the  first  part,  for  her  own  use,  all 
the  interest  that  shall  arise  and  be  due  on  the  said  bond  and  mortgage,  and  such 
of  the  principal  as  shall  be  paid  to  him,  and  fi-om  any  other  estate  which  may  be 
substituted  therefor,  as  is  hereinafter  provided. 

Will.— 40 


626  '  APPENDIX  OF  FORMS. 

Second.  That  from  and  after  the  solemnization  of  the  said  marriage,  and  during 
the  coverture  of  the  said  party  of  the  first  part,  the  said  party  of  the  second  part 
shall  receive  and  collect  the  interest  due  and  to  become  due  on  the  said  bond  and 
mortgage,  and  such  installments  of  the  principal  as  shall  become  payable  and  be 
paid,  and  aft«r  deducting  all  individual  expenses,  shall  pay  over  the  same,  or  so 
much  thereof  as  she  shall  not  direct  to  be  invested  for  accumulation,  to  the  said 
party  of  the  first  part,  upon  her  sole  and  separate  receipt  therefor,  and  free  from 
the  control  or  interference  of  her  husband,  or  any  other  person  whomsoever. 

Third.  Should  the  said  party  of  the  first  part  depart  this  life  after  the  solemni- 
zation of  the  said  marriage,  and  during  the  life  of  her  said  husband,  the  party  of 
the  third  pait,  the  said  bond  and  mortgage  and  any  other  money  or  effects  groov- 
ing out  of  this  trust,  shall  be  transferred  and  set  over  by  the  said  trustee,  the  party 
of  the  second  part,  to  such  person  or  persons  as  she,  the  said  party  of  the  first 
part,  by  an  instrument  in  writing,  in  the  nature  of  a  last  will  and  testament,  duly 
executed  as  wills  of  personal  estate  are  by  law  required  to  be  executed,  shall  order 
and  appoint  to  receive  the  same ;  and  in  default  of  making  such  appointment  the 
same  shall  be  transferred  and  paid  to  her  husband,  the  said  party  of  the  third  part ; 
and  in  case  of  his  decease  before  the  said  property  shall  be  actually  transferred  and 
paid  over  to  him,  then  to  such  person  or  persons  as  would  be  the  legal  representa- 
tives of  the  said  party  of  the  first  part,  by  the  statute  for  the  distribution  of  the 
estates  of  intestates. 

Fourth.  That  in  case  of  the  decease  of  the  said  party  of  the  third  part  (the  hus- 
band) during  the  lifetime  of  the  said  party  of  the  first  part,  all  the  property  then 
held  in  trust  under  this  indenture  shall  be  transferred  and  conveyed  to  the  said 
party  of  the  first  part ;  and  until  so  transferred,  the  whole  income  thereof  shall  be 
paid  to  her  for  her  own  use. 

Fifth.  That  the  said  party  of  the  second  part,  the  trustee,  shall  have  power  at 
the  request  of  the  said  party  of  the  first  part,  expressed  in  writing,  subscribed  by 
her  or  by  her  authority,  to  sell  and  assign  the  said  bond  and  mortgage ;  or  to  re- 
ceive any  portion  of  the  principal  and  invest  the  same  in  other  securities,  according 
to  such  written  direction  of  the  said  party  of  the  first  part ;  and  the  property  so 
purchased,  and  the  investment  so  made,  shall  be  had  and  held  by  the  trustee  upon 
the  same  trusts,  and  for  the  same  purposes  as  aforesaid. 

Siicth.  That  in  case  of  the  termination  of  the  authority  of  the  said  trustee  by 
his  death,  resignation  or  removal,  the  whole  trust  fund  held  by  him  shall  be  deliv- 
ered over  to  such  person  or  persons  as  may  be  appointed,  in  writing,  by  the  party 
of  the  first  part,  to  be  the  trustee  under  this  indenture,  or  by  any  court  having  ju- 
risdiction thereof;  and  the  receipt  of  such  new  trustee,  for  the  trust  property,  shall 
be  a  sufficient  discharge  of  the  said  party  of  the  second  part,  his  executors  and  ad- 
ministrators ;  and  in  like  manner  other  new  trustees  may  be  appointed  from  time 
to  time,  as  occasion  may  require. 

And  the  said  party  of  the  second  part  hereby  accepts  the  said  bond  and  mort- 
gage, and  engages  to  hold  and  manage  the  same  upon  the  trusts  herein  mentioned. 
And  the  said  party  of  the  third  part  doth  hereby  signify  his  assent  to  the  pro- 
visions of  this  indenture,  and  hereby  covenants  with  the  party  of  the  second  part, 
and  his  successors  in  the  said  trust,  to  permit  the  said  party  of  the  first  part,  after 
the  solemnization  of  the  said  marriage,  to  receive  the  aforesaid  interest  and  princi- 
pal of  the  said  bond  and  mortgage  to  her  sole  and  separate  use,  and  freel  to  disposey 


APPENDIX  OF  FORMS.  g27 

of  the  trust  estate  by  her  will,  or  testamentary  appointment  at  her  death,  and  not 
to  interfere  with  the  said  trust  estate,  otherwise  than  in  conformity  to  the  provis- 
ions of  this  indenture. 

In  witness  whereof,  the  said  parties  have  hereto  set  their  hands  and  seals,  the 
day  and  year  above  written. 

Sealed  and  dehvered  in  j^ne  Doe.  [l.  s  J 

presence  of  John  Doe.  [l.  s.] 

James  Jackson,  [l.  s.] 
[Acknowledgment] 

Notes.  (1.)  As  upon  the  death  of  a  sole  surviving  trustee  of  an  express  trust 
the  trust  estate  does  not  descend  to  his  heirs,  or  pass  to  his  personal  representa- 
^ves  It  seems  improper  m  conveying  the  trust  property  to  the  trustee,  to  add 
words  of  hmitation.     (I  R.  S.  730,  §  68.)  ^    ^     j  >  «■"  "■^^^ 

(2.)  There  should  be  triplicates  of  the  above  instrument,  executed  bv  all  the 
parties,  one  of  which  should  be  kept  by  each.  As  a  matter  of  prudence,  it  should 
be  recorded  by  the  clerk  of  the  county  among  miscellaneous  records. 


No.  84. 
ANTE-NUPTIAL  SETTLEMENT  OF  REAL  ESTATE  BELONGING  TO  THE  INTEND 
ED   WIFE,    RESERVING  A  GENERAL   POWER  OF  DISPOSITION  IN   HER    THE 
ENTIRE  LEGAL  ESTATE  BEING  VESTED  IN  THE  TRUSTEES. 

This  indenture  of  three  parts,  made  and  concluded  this day  of  . 

186. .,  between  H.  A.  W.,  of  the  town  of,  &c.,  of  the  first  part,'  [the'intended'hus- 
band,]  L.  A.,  of;  &c.,  [the  intended  wife,]  of  the  second  part,  and  T.  L.,  of,  &c.,  of 
the  third  part,  [the  trustee.]     Witnesseth:  That  whereas,  a  marriage  is  intended 
by  the  permission  of  God,  to  be  shortly  had  and  solemnized  between  the  said  par- 
ties of  the  first  and  second  part,  and  the  said  party  of  the  second  part  is  seised  and 
possessed  of  a  large  estate,  situate  and  being,  &c.,  and  it  is  agreed  by  and  between 
her  and  the  said  party  of  the  first  part,  that  the  said  estate  should  be  settled  upon 
the  trusts  and  for  the  purposes  hereinafter  declared.     Now,  therefore,  in  consider- 
ation of  the  said  intended  marriage,  and  of  the  sum  of  one  dollar  to  the  said  party 
of  the  second  part  paid,  by  the  said  party  of  the  third  part,  the  receipt  whereof  is 
hereby  confessed  and  acknowledged,  the  said  party  of  the  second  part  hath  granted, 
bargained  and  sold,  and  by  these  presents  doth  grant,  bargain  and  sell  unto  the 
said  party  of  the  third  part,  his  successors  and  assigns,  all  that,  [here  describe  the 
property,]  to  have  and  to  hold  the  said  tenements  and  hereditaments,  with  their 
appurtenances,  unto  the  said  party  of  the  third  part,  his  successors  and  assigns,  to 
such  uses  and  purposes  as  are  hereinafter  mentioned,  to  wit:  For  the  use  and  ben- 
efit of  the  said  party  of  the  second  part,  until  her  said  intended  marriage  shall  take 
place,  and  from  and  after  the  solemnization  thereof,  then  upon  trust,  from  time  to 
time  to  apply  to  the  use  of  the  said  party  of  the  second  part,  all  the  interest  divi- 
dends and  annual  produce  thereof  during  the  joint  lives  of  the  said  parties  of  the 
first  and  second  part,  to  her  own  proper  use  and  benefit,  and  upon  her  own  proper 
receipt  for  the  same,  notwithstanding  her  coverture,  to  the  intent  that  the  same 
may  not  be  at  the  disposal  or  under  the  control  of  the  said  party  of  the  first  part 
or  in  any  manner  subject  to  his  debts  and  engagements ;  and  from  and  immediately 
after  the  decea..e  of  the  said  party  of  the  first  part,  [the  husband,]  in  case  the  said 
party  of  the  second  part,  [the  wife,]  shall  survive  him,  then  upon  trust  for  the  use 


628  APPENDIX  OF  FORMS. 

and  benefit  of  the  said  party  of  the  second  part,  her  executors,  administrators  and 
assigns,  and  upon  trust  in  such  case  to  grant  and  convey  the  trust  estate  and  every 
part  thereof  to  the  said  party  of  the  second  part  absolutely,  or  to  grant  and  convey 
the  same  to  such  person  or  persons  as  she,  by  any  writing  to  be  by  her  duly  ex- 
ecuted, may  limit,  direct  and  appoint.  But  in  case  the  said  party  of  the  first  part 
shall  survive  the  said  party  of  the  second  part,  then  upon  trust,  from  and  imme- 
diately after  her  decease,  to  apply  to  the  use  of  the  said  party  of  the  first  part,  all 
the  interest,  dividends  and  annual  produce  thereof,  from  time  to  time,  during  his 
natural  life,  to  and  for  his  own  use  and  benefit ;  and  on  the  decease  of  the  said 
party  of  the  first  part,  to  pay  and  divide  the  capital  or  principal  of  the  said  trust 
fund,  and  to  grant  and  convey  all  her  real  estate  to  and  among  the  lawful  children 
of  the  said  party  of  the  second  part,  and  their  issue,  in  such  proportions,  shares, 
manner  and  form  as  she,  by  any  writing  under  her  hand  subscribed  in  the  presence 
of  two  or  more  witnesses,  shall  direct  and  appoint;  and  for  want  of  such  appoint- 
ment, to  and  among  the  said  children  of  the  said  party  of  the  second  part,  and  the 
lawful  issue  of  such  of  them  as  may  be  deceased,  according  to  the  rules  of  descent 
and  of  distribution  in  cases  of  intestacy.  But  if  there  be  no  issue  of  the  said  party 
of  the  second  part  then  surviving,  then,  upon  trust,  to  pay  and  dispose  of  the  said 
capital  or  principal,  and  grant  and  convey  the  said  real  estate  according  to  the  di- 
rection and  appointment  of  the  said  party  of  the  second  part,  and  for  want  of  such 
appointment,  to  and  among  her  then  surviving  nephews  and  nieces,  children  of  her 
sisters  and  the  lawful  issue  of  such  of  them  as  may  be  deceased,  according  to  the 
like  rule  of  descent  and  distribution,  t 
In  witness  whereof,  &c.,  as  in  No.  83. 

Note.  The  above  is  taken  from  the  case  of  Wright  v.  Talmadge,  (15  N.  T.  Rep.) 
308  and  309,  which  was  held  by  the  court  of  appeals  to  be  a  valid  marriage  settle- 
ment under  the  revised  statutes.     See  remarks  of  Denio,  J.,  on  the  same. 


No.  85. 
A  POWER  TO  TRUSTEES  TO  SELL  AND  REINVEST  THE  SAME. 
Add,  at  the  +  in  Xo.  84,  as  follows:  And  the  said  party  of  the  second  part  doth 
hereby  grant  and  agree  that  the  said  party  of  the  third  part,  upon  the  written  re- 
quest of  her  the  said  party  of  the  second  part,  may  grant  and  convey  the  whole  or 
any  designated  portion  of  the  said  estate  upon  such  terms  as  she  shall  direct,  and 
receive  the  consideration  money  therefor,  and  invest  the  same  for  the  like  uses  and 
purposes  hereinbefore  declared  with  respect  to  the  original  trust. 


No.  86. 
CLAUSE  IN  WHICH  THE  REAL  ESTATE  COMES  FROM  THE  HUSBAND,  AND  IS 
INTENDED,  AFTER  HIS  DEATH,  TO  GO  TO  THE  WIFE  FOR  A  JOINTURE. 
To  the  use  of  the  said  party  of  the  first  part,  [the  intended  husband,]  for  and 
during  the  term  of  his  natural  life,  without  impeachment  of  waste,  and  from  and 
after  his  decease,  then  to  the  use  and  behoof  of  the  said  party  of  the  second  part 
[the  intended  wife]  for  and  during  the  term  of  her  natural  Ufe,  in  name  of  her 
jointure,  and  in  full  recompense  and  satisfaction  of  her  dower,  which  she  the  said 
party  of  the  second  part  should  or  ought  to  have  in  or  out  of  the  lands,  tenements 


APPENDIX  OF  FORMS.  629 

or  hereditaments  of  the  said  party  of  the  first  part,  whereof  the  said  party  of  the 
first  part  hath,  or  hereafter  shaU  have,  during  the  coverture  between  him  and  her, 
any  estate  of  inheritance. 

Note.  3  Newnam's  Conveyancer,  230.  1  R.  S.  741,  §§  9,  10,  11.  A  pecunmry 
provision  for  the  benefit  of  the  intended  wife,  in  heu  of  dower,  is  equally  effective, 
if  assented  to  by  her. 


No.  87. 

ANTE-NUPTIAL  SETTLEMENT  OF  THE  REAL  ESTATE  OF  THE  INTENDED  WIFE 
TO  THE  USE  OF  HERSELF  AND  HER  INTENDED  HUSBAND  FOR  LIFE,  WITH 
CONTINGENT  REMAINDERS  TO  THEIR  ISSUE,  WHICH  OPEN  TO  LET  IN  AF- 
TER-BORN CHILDREN. 

This  indenture,  made  the day  of 1860,  between  M.  P.,  of  &c.  of 

the  first  part,  [the  intended  wife,]  R.  M.,  [the  intended  husband,]  of  &c.,  of  the 
second  part,  and  I.  P.  and  B.  R.,  of  &c.  [the  trustees,]  of  the  third  part,  witnesseth: 
That  in  consideration  of  a  marriage  intended  to  be  had  and  solemnized  between 
the  said  parties  of  the  first  and  second  part,  and  the  settlement  hereafter  made  by 
the  said  party  of  the  second  part  on  the  said  party  of  the  first  part,  and  for  and  in 
consideration  of  the  sura  of  one  dollar  by  the  said  parties  of  the  third  part,  at  or 
before  the  ensealing  and  delivery  of  these  presents,  well  and  truly  paid,  the  receipt 
whereof  is  hereby  acknowledged ;  and  for  divers  other  good  causes  and  considera- 
tions her  the  said  party  of  the  first  part  thereunto  moving,  she  the  said  party  of 
the  first  part  hath  granted,  bargained  and  sold,  and  by  these  presents  doth  grant, 
bargain  and  sell  unto  the  said  parties  of  the  third  part,  [the  trustees,]  and  to  their 
heirs,  all  and  singular,  [here  describe  the  estate  t^onveyed.] 

To  have  and  to  hold  the  above  granted  and  bargained  premises,  and  every  part 
thereof,  unto  the  said  parties  of  the  third  part,  and  their  heirs,  to  and  for  the  sev- 
eral uses,  intents  and  purposes  hereinafter  declared,  expressed,  limited  and  appoint- 
ed, and  to  and  for  no  other  use,  intent  and  purpose  whatsoever ;  that  is  to  say,  to 
and  for  the  use  and  behoof  of  the  party  of  the  first  part,  until  the  solemnization 
of  the  intended  marriage,  and  to  the  use  and  behoof  of  the  said  parties  of  the  first 
and  second  part;  and  the  survivor  of  them,  for  and  during  the  term  of  their  natural 
lives,  without  impeachment  of  waste;  and  from  and  after  the  determination  of  that 
estate,  then  to  the  use  and  behoof  of  such  child  or  children  as  shall  or  may  be 
procreated  between  them,  and  to  his,  her  or  their  heirs  and  assigns  forever :  but 
in  case  the  said  parties  of  the  first  and  second  part  shall  have  no  child  or  children 
begotten  between  them,  or  that  such  child  or  children  shall  happen  to  die  during 
the  hfetime  of  the  said  parties  of  the  first  and  second  part,  and  the  said  party  of 
the  first  part  should  survive  the  said  party  of  the  second  part  without  issue,  then 
to  the  use  and  behoof  of  her  the  said  party  of  the  first  part,  and  her  heirs  and  as- 
signs forever:  and  in  case  the  said  party  of  the  second  part  should  survive  the  said 
party  of  the  first  part,  without  any  issue  by  her,  or  that  such  issue  is  then  dead 
without  leaving  issue,  then,  after  the  decease  of  the  said  party  of  the  second  part, 
to  the  only  use  and  behoof  of  such  person  or  persons,  and  in  such  manner  and 
form,  as  she,  the  said  party  of  the  first  part,  shall  at  any  time  during  the  said  in- 
tended marriage,  devise  the  same  by  her  last  will  and  testament;  which  last  will 
and  testament,  for  that  purpose,  it  is  hereby  agreed  by  all  the  parties  to  these 


630  APPENDIX  OF  FORMS. 

presents,  that  it  shall  be  lawful  for  her,  at  any  time  during  the  said  marriage,  to 
make,  publish  and  declare,  the  said  marriage  or  anything  herein  contained  to  the 
contrary  thereof  in  anywise  notwithstanding:  provided  nevertheless,  and  it  is  the 
true  intent  and  meaning  of  the  parties  to  these  presents,  that  it  shall  and  may  be 
lawful  to  and  for  the  said  parties  of  the  first  and  second  part,  jointly  at  any  time 
or  times  during  the  said  marriage,  to  sell  and  dispose  of  any  part  of  the  said  sev- 
eral lots  or  parcels  of  land,  or  of  any  other  her  lands,  tenements,  hereditaments 

and  real  estate  to  the  value  of ;  and  in  case  the  said  sum  of ba 

not  raised  by  such  sale  or  sales,  during  their  joint  lives,  and  they  have  issue  be- 
tween them,  that  then  it  shall  be  lawful  for  the  survivor  of  them  to  raise  the  said 
Bum,  by  the  sale  of  any  part  of  the  said  lands,  or  such  deficiency  thereof  as  shall 
not  then  have  been  already  raised  thereout,  so  as  to  make  up  the  said  full  sum  of 
anything  hereinbefore  contained  to  the  contrary  thereof  in  anywise  not- 
withstanding. 

[Here  insert  the  settlement  of  the  husband  upon  the  wife  as  agreed.] 

In  witness  whereof,  &c. 

Sealed  and  delivered  in 
presence  of 

The  above  is  taken,  with  a  slight  variation,  from  the  marriage  settlement  be- 
tween Mary  PhiUipse  and  Roger  Morris,  made  in  1758,  which  was  held  to  be  vahd 
by  all  the  courts.  (4  Peters'  U.  S.  Rep.  1-7.)  See  remarks  of  Story,  J.  thereon  at 
page  90  et  seq. 


No.  88. 
ANTE-NUPTIAL  AGREEMENT,  WITHOUT  THE  INTERVENTION  OF  TRUSTEES, 

RESERVING  A  POWER  OF  DISPOSITION  BY  WILL  AND  OTHERWISE  IN  THE 

WIFE,  DURING  COVERTURE. 

This  indenture,  made  the day  of ,  186. .,  between  John 

Doe,  of,  &c.,  of  the  first  part,  and  Ehzabeth  Jackson,  of,  &c.,  of  the  second  part. 
Whereas,  a  marriage  is  intended  to  be  shortly  had  and  solemnized  between  the 
said  parties,  and  whereas  the  said  parties  are  respectively  seised  and  possessed  of  a 
very  considerable  real  and  personal  estate,  and  it  has  been  mutually  agreed  by  and 
between  the  said  parties  that  their  respective  property,  both  real  and  personal, 
which  they  shall  have  and  be  entitled  to  at  the  time  of  the  consummation  of  their 
said  intended  marriage,  shall  be  and  remain  after  the  said  marriage  as  it  was  before, 
the  individual  and  separate  property  of  the  party  to  whom  it  belonged,  at  the  time 
of  the  said  marriage.  Now,  therefore,  this  indenture  witnesseth,  that  the  said 
parties,  in  consideration  of  the  said  intended  marriage,  and  of  the  premises  here- 
inafter mentioned,  have  granted,  covenanted  and  agreed  to  and  with  each  other 
and  their  respective  heirs,  executors  and  administrators,  and  by  these  presents  do 
grant,  covenant  and  agree  to  and  with  each  other,  their  respective  heirs,  executors 
and  administrators,  that  the  respective  property  of  each  of  the  said  parties,  both 
real  and  personal,  of  every  kind,  character  and  description,  which  either  of  the  said 
parties  shall  have  or  be  entitled  to  at  the  time  of  the  said  intended  marriage,  shall 
be  and  remain  after  the  said  marriage,  as  it  was  before,  the  individual  and  separate 
property  of  that  party  to  whom  it  belonged  at  the  time  of  the  marriage,  and  not 


APPENDIX  OP  FORMS.  631 

m  any  manner  to  be  affected  thereby ;  and  that  all  the  property,  both  real  and 
personal,  acquired  by  either  party,  by  gift,  devise,  legacy,  by  his  or  her  earnings, 
or  by  any  other  means  whatever,  after  the  said  marriage,  shall  be  and  remain  the 
individual  and  separate  estate  and  property  of  the  party  so  acquiring  it,  in  the  same 
manner  and  to  the  same  extent  as  if  such  marriage  had  riot  taken  place ;  that  the 
said  party  of  the  first  part  shall  not  be  entitled  to  an  estate  by  the  curtesy  in  any 
real  estate  of  which  the  said  party  of  the  second  part  is  now  or  may  hereafter  be 
seised ;  and  the  said  party  of  the  second  part,  if  she  survives  the  said  party  of  the 
first  part,  shall  not  be  entitled  to  be  endowed  in  any  of  the  estate  of  which  he  may 
be  seised  at  any  time  during  the  coverture. 

And  the  Said  parties  do  further  mutually  agree  that  they  shall  respectively  have 
the  right  and  liberty  of  disposing  of  their  individual  and  separate  property,  both 
real  and  personal,  and  to  purchase  other  property  at  their  discretion,  without  the 
assent  of  the  other,  as  fully  as  they  might  do  if  sole  and  unmarried ;  and  that  neither 
party  shall,  by  virtue  of  the  said  marriage,  acquire  any  right  or  title  in  the  property 
or  estate,  or  earnings  of  the  other.  And  it  is  further  agreed  that  the  said  party  of 
the  second  part  shall,  at  all  times  during  the  said  coverture,  have  full  power  effect- 
ually to  dispose  of  according  to  her  pleasure,  by  will  or  by  an  instrument  in  writing 
in  the  nature  of  a  will,  all  such  real  or  personal  estate  as  she  may  be  seised  or  pos- 
sessed of  in  her  own  right,  or  in  conjunction  with  others,  in  the  same  way  as  if 
she  was  a  feme  sole. 

And  it  is  fiirther  mutually  agreed  by  and  between  the  said  parties,  that  if  either 
of  the  said  parties  dies  intestate,  the  whole  real  and  personal  property  of  the  party 
80  dying  shall  pass  to  the  survivor,  his  or  her  heirs  and  assigns,  [or  shall  descend  to 
the  heirs  and  next  of  kin  of  such  party,  according  to  tht  law  of  descents,  and  for  the 
distribution  of  estates  in  cases  of  intestacy.] 

In  witness  whereof,  the  said  parties  have  hereto  set  their  hands  and  seals  the 
day  and  year  above  written. 

Sealed  and  delivered  in  Johu  Doe.  [l.  s.] 

presence  of  Elizabeth  Jackson,    [l.  s.] 

It  should  be  acknowledged  and  recorded. 

The  validity  of  such  a  settlement  was  declared,  by  Chancellor  Kent,  in  Bradish 
V.  Gibbs,  (3  John.  Ch.  R.  623,)  and  by  the  supreme  court,  in  Strong  v.  Skinner,  (4 
Barb.  546,  554.  L.  of  1849,  ch.  375,  §  3.)  "  Contracts,  made  between  persons  in 
contemplation  of  marriage,  shall  remaim  in  full  force  after  such  marriage  takes 
place."     (Id.)    L.  1860,  ch.  90,  p.  157. 

The  foregoing  ante-nuptial  agreement  gives  to  the  woman,  after  marriage,  greater 
power  of  disposition  than  the  act  of  1860. 

It  is  generally  deemed  advisable  to  vest  the  estate  in  a  trustee,  in  the  case  of 
marriage  settlements ;  but  it  is  not  indispensable.  (Blanchard  v.  Blood,  2  Barb.  S. 
C.  R.  354;  2  Story's  Eq.  Jur.  607,  §  1380;  2  Kent's  Com.  162.) 

An  executory  contract  of  a  wife,  made  under  such  a  power  as  is  given  by  this 
settlement,  can  be  enforced  against  the  wife.  (Van  Allen  v.  Humphrey,  15  Bar- 
bour, 555.) 

For  form  of  an  ante-nuptial  settlement,  by  French  law^  see  Le  Breton  v.  Miles, 
(8  Paige,  262,)  et  seq.  where  one  is  set  out  at  lengths 


632  APPENDIX  OF  FORMS. 

No.  89. 
POST-NUPTIAL  SETTLEMENT  OP  THE  ESTATE  OF  THE  WIFE,  CONVEYED  BY 

HER  AND  HER  HUSBAND  TO  A  TRUSTEE,  FOR  CERTAIN  TRUSTS  IN  WHICH 

HER  INTEREST  IS  INALIENABLE. 

The  usual  deed  from  the  husband  and  wife  to  H.  F.  B.,  the  trustee,  of  certain 
real  estate  of  which  the  wife  is  seised  in  fee,  [describing  it,]  and  then  proceed : 

"  To  and  for  the  several  uses,  intents  and  purposes,  and  upon  the  trusts  herein- 
after mentioned  and  expressed  concerning  the  same ;  that  is  to  say,  in  trust,  in  the 
first  place,  to  pay  out  of  the  rents,  income  and  profits  of  the  said  premises,  the  in- 
terest accruing  and  to  accrue  upon  the  aforesaid  mortgages  and  other  incumbrances ; 
in  the  next  place,  to  pay  thereout  all  necessary  taxes  and  assessments  upon  the  said 
premises ;  and  in  the  next  place,^  to  pay  thereout  all  necessary  expenses  incurred  in 
the  needful  repairs  and  insurance  of  the  buildings  erected  on  the  said  premises,  and 
after  the  payment  of  the  said  interest  and  assessments,  and  expenses  thereto,  to 
pay  the  remainder  of  the  said  rents,  income,  profits  and  proceeds,  to  the  said  Ann 
Maria,  [the  wife,]  upon  her  own  separate  receipt,  notwithstanding  her  coverture, 
to  the  intent  and  purpose  that  the  same,  or  any  part  thereof,  may  not  be  at  the 
disposal  of,  or  subject  to  the  control,  debts,  liabilities  or  engagements  of  the  said 
H.  B.,  [the  husband,]  or  of  any  future  husband  she  may  have,  but  at  her  sole  and 
separate  use  and  disposal ;  and  upon  this  further  trust,  upon  the  decease  of  the  said 
Maria  during  her  coverture  with  the  said  H.  B.,  or  any  other  future  husband  she 
may  marry,  to  appropriate  the  said  proceeds,  (after  deducting  the  outgoings  afore- 
said,) and  to  apply  and  dispose  of  the  same  in  such  manner  as  the  said  Ann  Maria, 
[the  wife,]  shall,  by  her  last  will  and  testament  duly  executed,  direct  and  appoint, 
and  in  default  of  such  appointment,  then  to  apply  the  said  proceeds  towards  the 
maintenance  and  education  of  the  child  or  children  of  them,  the  said  H.  B.  and  Ann 
Maria,  until  they  shall  arrive  at  age  or,  if  females,  be  married,  if  any  such  children 
there  be  living  at  her  decease ;  and  if  no  child  or  children  shall  be  then  living,  then 
to  pay  the  same  to  the  said  H.  B.,  [the  husband,]  during  his  hfe ;  and  it  is  hereby 
declared  and  agreed  by  and  between  all  the  said  parties  to  these  presents,  that  the 
said  Ann  Maria  shall  have  power,  during  her  coverture  with  the  said  H.  B.,  or 
■with  any  other  future  husband  she  may  marry,  to  devise  the  said  pieces  or  parcels, 
or  lots,  of  ground  and  premises,  by  her  last  will  and  testament,  in  the  same  manner 
as  though  she  were  a  feme  sole  and  unmarried ;  and  the  said  party  hereto  of  the 
second  part,  [the  trustee,]  is  hereby  empowered  to  use  all  necessary  ways  and 
means  for  the  recovery  of  the  rents  and  profits  of  the  said  premises,  and  to  reim- 
burse himself  all  necessary  expenses  in  the  execution  of  the  trust  hereby  reposed 
in  him ;  and  it  is  hereby  further  declared  and  agreed,  that  upon  the  death  of  the 
said  H.  F.  B.,  [the  trustee,]  the  party  of  the  second  part,  if  the  same  should  happen 
before  the  decease  of  the  said  Ann  Maria,  she,  the  said  Ann  Maria,  shall  be  and 
is  hereby  empowered  to  appoint  one  or  more  trustees  in  the  place  and  stead  of  the 
said  H.  F.  B.,  party  hereto  of  the  second  part,  and  also  shall  be  and  hereby  is  em- 
powered to  appoint  any  new  trustees  in  the  place  and  stead  of  those,  at  any  time 
60  to  be  appointed,  such  newly  appointed  trustees  to  be  invested  with  the  same 
powers,  and  to  hold  the  same  premises  upon  the  same  trust  as  hereinbefore  set 
fortL" 

The  above  is  taken  from  Noyes  v.  Blakeman,  3  Sandf.  S.  C.  R.  532,  et  seq.,  which 


APPENDIX  OF  FORMS.  633 

•was  finally  passed  upon  by  the  court  of  appeals,  in  2  Seld.  567.  See  remarks  of 
the  judges  on  the  same,  showing  that  the  trust  estate  of  the  wife  was  inalienable, 
under  the  r  .^sed  statutes. 

(1  R.  S.  729,  §  60,  63.) 


No.  90. 


POWEi  t  I    ATTORNEY  TO   CONVEY   REAL  ESTATE,  WITH  A  POWER  OF  SUB- 
STITUTION. 

Know  all  men  by  these  presents,  that  I,  A.  B.,  of ,  have  made,  consti- 
tuted and  appointed,  and  by  these  presents  do  make,  constitute  and  appoint  C.  D.,' 

of , . .' ,  my  true  and  lawful  attorney  for  me  and  in  my  name,  place  and  stead> 

to  enter  upon  and  take  possession  of  all  such  lands,  tenements,  hereditaments  and 
real  estate  whereof  I  am  seised  or  possessed,  or  entitled  unto,  in  the  state  of  New 
York,  or  in  which  I  have  any  interest ;  and  to  grant,  bargain  and  sell  the  same,  or 
any  part  or  parcel  thereof,  for  such  sum  or  price,  and  on  such  terms  as  to  him  shall 
seem  proper ;  and  for  me  and  in  my  name  to  make,  execute  and  acknowledge,  and 
deliver  good  and  sufficient  deeds  and  conveyances  for  the  same,  either  with  or  with- 
out covenants  and  warranty ;  and  until  the  sale  thereof,  to  let  and  demise  the  said 
real  estate,  or  any  part  thereof,  for  the  best  rent  that  can  be  procured  for  the  same ; 
and  to  ask,  demand,  collect,  recover  and  receive  all  sums  of  money  which  shall  be- 
come due  and  owing  to  me  by  means  of  such  bargain  and  sale,  or  lease  and  de- 
mise; hereby  giving  and  granting  unto  my  said  attorney  full  power  and  authority 
to  do  and  perform  all  and  every  act  and  thing  whatever,  requisite  and  necessary  to 
be  done  in  and  about  the  premises,  as  fiilly  to  all  intents  and  purposes  as  I  might 
or  could  do  if  personally  present,  with  full  power  of  substitution  and  revocation, 
hereby  ratifying  and  confirming  all  that  my  said  attorney  or  his  substitute  shall 
lawfully  do  or  cause  to  be  done,  by  virtue  hereof. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  the  ....  day  of ... . 
in  the  year  1860. 

Sealed  and  delivered  in  A.  B,     [l.  s.] 

presence  of 
E.  F. 

Note.     It  should  be  acknowledged  or  proved,  and  recorded,  as  is  required  in  the 
case  of  deeds. 


No.  91. 

SUBSTITUTION  OF  AN  ATTORNEY. 

Know  all  men  by  these  presents,  that  I,  C.  D.,  of ,  by  virtue  of  the 

power  and  authority  to  me  given  in  and  by  the  letter  of  attorney  of  A.  B.,  of 

which  is  hereto  annexed,  do  substitute  and  appoint  L.  M.,  of ,  to  do,  per- 
form and  execute  every  act  and  thing  which  I  might  or  could  do,  in,  by  and  under 
the  same,  as  well  for  me,  as  being  the  true  and  lawful  attorney  and  substitute  of 
the  said  A.  B.,  as  for  the  said  A.  B.,  hereby  ratifying  and  confirming  all  the  said 


634  APPENDIX  OF  FORMS. 

attorney  and  substitute  hereby  made  and  appointed,  shall  do  in  the  premises  by 
virtue  hereof,  and  of  the  said  letter  of  attorney. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  the  ....  day  of . . . . 
in  the  year  1860. 

Sealed,  &c.  C.  D.     [l.  s.] 

To  be  acknowledged  and  recorded. 


No.  92. 

REVOCATION  OF  A  POWER  OF  ATTORNEY. 

•  Know  all  men  by  these  presents :  That  whereas  I,  A.  B.,  of ,  in  and  by 

my  letter  of  attorney,  bearing  date  the day  of ,  1860,  did  make, 

constitute  and  appoint  C.  D.,  of  &c.  my  true  and  lawful  attorney,  for  me  and  in 
my  name  to  &c.,  [here  copy  the  language  of  the  letter  of  attorney,  or  state  the 
substance  of  it,]  as  by  the  said  in  part  recited  letter  of  attorney  will  more  fully  and 
at  large  appear :  Now  know  ye,  that  I,  the  said  A.  B.,  have  revoked,  counter- 
manded, annulled  and  made  void,  and  by  these  presents  do  revoke,  countermand, 
annul  and  make  void  the  said  letter  of  attorney,  and  all  power  and  authority  there- 
by given,  or  intended  to  be  given,  to  the  said  C.  D. 

In  witness,  &c.  A.  B.     [l.  s.] 

Sealed  and  delivered,  &c. 

It  should  be  acknowledged  or  proved,  and  recorded.  It  should  be  served  on 
the  attorney,  by  delivering  it  to  him.  And  notice  should  be  given  of  the  revoca- 
tion by  pubHcation  in  the  newspapers,  or  otherwise. 

"When  a  power  of  attorney  forms  a  part  of  the  security  for  a  loan  of  money,  as 
for  instance,  the  power  of  sale  in  a  mortgage,  it  is  irrevocable. 

(See  ante,  page  267.) 


No.  93. 


POWER  OF  REVOCATION   AND  APPOINTMENT,  IN    MARRIAGE   SETTLEMENT ; 
AND  OF  APPOINTING  A  NEW  TRUSTEE  IN  CASE  OF  DEATH. 

And  it  is  hereby  covenanted  and  agreed  by  and  between  the  parties  to  these 
presents,  that  the  parties  of  the  second  part  [the  intended  husband  who  makes  the 
settlement]  and  third  part  [the  trustees]  shall  be,  and  they  are  hereby  authorized, 
during  the  continuance  of  the  trust,  to  lease  and  demise  the  granted  premises  for 
such  lawful  term  or  terms,  and  at  such  rents  and  upon  such  covenants  as  to  re- 
newals, as  to  them  shall  seem  proper ;  and  that  they  shall  be  and  hereby  are  au- 
thorized and  empowered  to  grant,  bargain,  sell  and  convey  in  fee  simple  absolute, 
at  public  or  private  sale,  for  cash  or  upon  credit,  or  partly  for  cash  and  partly  upon 
credit,  all  or  any  part  or  parcel  of  the  said  trust  or  premises,  or  of  any  other  prem- 
ises in  which  the  proceeds  thereof  may  be  reinvested,  and  to  invest  the  proceeds 
of  such  sale  or  sales  in  other  real  estate,  or  upon  bonds  and  mortgages  within  the 
state  of  New  York,  or  in  the  public  stocks  of  the  United  States  or  of  the  city  of 
New  York,  or  in  improving  other  parts  of  the  said  real  estate,  and  to  alter  and 


APPENDIX  OF  FORMS.  635 

change  such  investments  from  time  to  time  as  they  may  think  proper ;  and  that 
the  rents,  profits,  interests,  dividends  and  other  income  thereof,  shall  be  held  and 
applied  by  the  parties  of  the  second  and  third  part,  upon  the  same  trusts  with  the 
like  powers  and  upon  the  same  conditions,  covenants  and  agreements  as  herein  ex- 
pressed and  declared. 

And  it  is  further  agreed,  that  upon  the  death  of  either  of  the  trustees,  the  survi- 
vor or  survivors  may,  with  the  consent  in  writing  of  the  said  party  of  the  fourth 
part,  [the  intended  wife,  the  cestui  que  trust,]  nominate  and  appoint  another  trustee 
in  his  place,  and  thereupon  the  trust  premises  shall  be  held  by  the  substituted  trus- 
tee and  the  survivors,  with  the  same  powers  and  upon  the  same  conditions  herein- 
before expressed  and  declared. 

Note.  See  Belmont  v.  O'Brien,  2  Kernan,  394,  from  which  the  above  was  taken 
■with  some  variations,  and  remarks  on  it  by  Judge  Hand  at  page  404,  in  same  case. 
He  says,  the  powers  of  charging,  selling,  exchanging,  jointuring  and  leasing,  usu- 
ally inserted  in  marriage  settlements,  are  in  effect  powers  of  revocation  and  ap- 
pointment; and  postpone,  abridge  or  defeat,  in  a  greater  or  less  degree,  the  previ- 
ous uses  and  estates,  and  appoint  new  uses  in  their  stead. 


No.  94. 


POWER   IN   TRUST  UNDER   THE   REVISED   STATUTES,  WHICH   MAY  BE  CRE- 
ATED EITHER  BY   DEED  OR  WILL. 

"  I  give  and  devise  all  my  property  and  estate,  both  real  and  personal,  whereso- 
ever the  same  may  be,  to  S.  G.,  of  &c.,  in  trust,  nevertheless  to  answer  the  intent 
and  meaning  of  this  will,  viz :  It  is  my  will  that  the  said  S.  G.  shall,  within  a  reas- 
onable time  after  my  decease,  and  within  sufficient  time  to  pay  the  legacies  here- 
inafter mentioned  and  bequeathed,  sell,  dispose  of  and  convey  all  my  estate,  both  real 
and  personal,  at  pubUc  auction  or  private  sale,  as  he  may  deem  proper,  and  out  of 
the  moneys  arising  fi-om  such  sale  of  my  said  real  and  personal  estate,  first,  to  pay 
all  my  just  debts,  funeral  charges  and  the  expense  of  settling  my  estate." 

Note.  Germond  v.  Jones,  2  Hill,  570;  remarks  of  Bronson,  J.  at  page  574. 


No.  95. 

A  POWER,  AND  NOT  A  TRUST,  IN  A  WILL. 

"  I  do  authorize  and  empower  my  executors  to  exchange,  sell  and  convey  to  and 

with  adjoining  owners  or  others,  such  gores,  strips  or  pieces  of  land  as  they  may 

deem  advantageous  to  my  estate,  by  straightening  and  equahzing  boundary  hues, 

and  to  execute,  deUver  and  receive  sufficient  deeds  therefor." 

(Tucker  v.  Tucker,  1  Seld.  410 ;  remarks  of  Buggies,  J.  thereon  at  page  422,  and 
by  Foot,  J.  at  page  413.) 


TRUSTS. 
See  Assignments  No.  32,  and  post  under  Wills. 


636  APPENDIX  OF  FORMS. 


WILLS. 

No.  96. 
WILL  OF  REAL  AND  PERSONAL  PROPERTY. 

In  the  name  of  God,  amen.     I,  A.  B.,  of  the  town  of ,  in  the  county 

of ,  and  state  of  New  York,  aged years  and  upwards,  and  be- 
ing of  sound  disposing  mind  and  memory,  do  make  and  publish  this  my  last  will 
and  testament,  in  manner  following,  to  wit : 

First.  I  give,  devise  and  bequeath  to  0.  D.,  of  &c.,  all  the  real  and  personal 
property  of  which  I  may  die  seised  and  possessed,  and  to  his  heirs  and  assigns, 
forever. 

Lastly.  I  appoint  E.  F.,  of ,  executor  of  this  my  last  will  and  testa- 
ment, hereby  revoking  all  former  wills  by  me  made. 

In  witness  whereof,  I  have  hereto  subscribed  my  name  this day  of 

,1860.  A.  B. 

Note.  It  is  not  necessary  that  a  will  should  be  under  seal  It  is  good,  with  or 
without  a  seal. 

ATTESTATION. 

We,  whose  names  are  hereto  subscribed,  do  certify,  that  A.  B.,  the  testator,  sub- 
scribed his  name  to  this  instrument  in  our  presence,  and  in  the  presence  of  each  of 
us,  and  at  the  same  time  he  declared  in  our  presence  and  hearing  that  the  same 
was  his  last  will  and  testament,  and  requested  us,  and  each  of  us,  to  sign  our  names 
thereto  as  witnesses  to  the  execution  thereof,  and  which  we  have  done  accord- 
ingly, in  the  presence  of  the  testator  and  of  each  other,  the  day  of  the  date  of  the 
said  will. 

J.  K.,  of  the  town  of ,  county  of 

L.  M.,  of  the  town  of ,  county  of 

Note.  For  form  of  will  containing  various  provisions,  see  Willard  on  Executors, 
473  et  seq.  4  Newnam's  Conveyancer,  738  et  seq.  And  see  the  will  of  Wil- 
ham  James,  in  Hawley  v.  James,  16  Wend.  61  et  seq.,  and  the  remarks  thereon  by 
the  counsel  and  court.  S.  C.  before  the  chancellor,  5  Paige,  318  et  seq.  Coster  v. 
Lorillard,  5  id.  172  et  seq.;  and  S.  C.  on  appeal,  14  Wend.  265  et  seq.,  and  re- 
marks of  the  judges.  The  will  in  both  of  those  cases  was  drawn  with  great  abil- 
ity, shortly  after  the  revised  statutes  took  eflect.  The  criticisms  on  the  various 
contested  items  will  enable  the  draftsman  to  avoid  the  errors  which  crept  into 
them.     Also,  see  Harris  v.  Clark,  3  Seld.  242  et  seq. 


No.  97. 
CODICIL. 

This  is  a  codicil  to  my  last  will  and  testament,  bearing  date  the day  of 

,1860. 

I  give  and  bequeath  to  L.  M.  one  hundred  dollars. 

In  witness,  &c. 

(To  be  executed  and  attested,  like  the  original  will.) 


APPENDIX  OF  FORMS.  637 

No.  98. 
CLAUSE  DEVISING  TO  A  MARRIED  WOMAN  REAL  ESTATE  IN  FEE,  WITH  A 

GENERAL  AND  BENEFICIAL  POWER  TO  DISPOSE  OF  IT  DURING  HER  MAR- 

RIAGE,    WITHOUT  THE  CONCURRENCE  OF  HER  HUSBAND,  UNDER  8  80  OP 

THE  ACT  "  OF  POWERS."     1  R.  S.  732. 

"  I  give  and  devise  to  A.  B.,  wife  of  C.  D.,  of ,  the  house  and  lot  which 

I  own  in  14th  street,  in  the  city  of  New  York,  known  as  No in  said 

street,  being  25  feet  in  front  and  rear,  and  120  deep,  to  her  and  her  heirs  in  fee ; 
and  I  empower  her  to  dispose  of  the  same,  during  her  marriage,  without  the  con- 
currence of  her  husband,  to  any  one  whom  she  may  choose,  for  her  own  benefit, 
either  by  a  deed  or  by  an  instrument  in  writing  in  the  nature  of  a  will,  and  exe- 
cuted in  the  manner  of  executing  wills  by  the  revised  statutes." 

Note.  See  Strong  v.  White,  1  Barb.  Ch.  13,  14;  Frazer  v.  Western,  Id.  240; 
Wright  V.  Talmadge,  1  Smith,  313 ;  Jackson  v.  Edwards,  22  Wend.  498. 

Under  a  devise  with  a  power,  like  the  above,  the  husband,  if  he  survives  his 
wife,  will  have  no  estate  by  the  curtesy.  She  may  devise  it  to  her  husband  or  any 
one  else. 


No.  99. 
CLAUSE  CONTAINING  PROVISION  FOR  THE  ACCUMULATION  OF  THE  INCOME 
OF  REAL  ESTATE,  FOR  THE   BENEFIT   OF  INFANTS    WHO  ARE  IN  ESSE  AT 
THE    TIME    SUCH    ACCUMULATIONS    ARE    DIRECTED   TO  COMMENCE,   AND 
WHICH  ARE  TO  TERMINATE  WITH  THE  MINORITIES  OF  THE  INFANTS. 

"  I  order  and  direct  that  one  fourth  part  of  my  real  and  personal  estate,  or  the 
avails  thereof,  be  placed  at  interest,  and  the  interest  or  income  thereof,  during  the 
life  of  my  son  B.  C,  be  applied,  at  the  discretion  of  my  executors,  towards  the 
support  of  the  family  of  the  said  B.  C,  and  the  education  of  his  children  born  and 
to  be  born ;  and  that  the  principal  of  the  said  one  fourth,  and  what  may  remain  of 
the  interest  or  income  thereof,  be  distributed  and  divided,  as  soon  after  his  decease 
as  can  conveniently  be  done,  unto  and  among  the  then  living  children  of  my  said 
son  B.  C,  and  the  issue  of  such  of  them,  if  any,  as  shall  then  have  deceased  leaving 
lawful  issue  then  living ;  each  child  of  his  then  hving  taking  one  equal  share  there- 
of, and  the  issue  of  such  of  them  as  shall  have  then  deceased  leaving  lawful  issue 
then  living,  if  one,  solely ;  if  more  than  one,  jointly  and  equally ;  taking  by  repre- 
sentation, the  share  or  shares  which  his,  her  or  their  parent  or  parents  would  have 
taken  if  living." 

See  Haxtun  v.  Corse,  (2  Barb.  Ch.  509,)  and  the  remarks  of  the  chancellor  on 
the  above,  at  page  517,  holding  it  to  be  valid.  (1  R  S.  728,  §  55,  sub.  3.)  It  sus- 
pends the  power  of  alienation  only  during  the  life  of  B.  C.  It  is  subject  to  open 
and  let  others  into  the  class,  from  time  to  time.  See  also  Savage  v.  Burnham,  (17 
N.  Y.  Eep.  561.) 


No.  100. 

CLAUSE,  CHARGING  THE  TESTATOR'S  REAL  ESTATE  AS  THE  PRIMARY  FUND 

FOR  THE  PAYMENT  OF  DEBTS,  IN  EXONERATION  OF  THE  PERSONALTY. 

"  I  give  and  devise  all  my  real  estate,  [or,  as  the  case  may  be,  a  certain  farm, 
situate  in ,  known  as  the farm,]  to  A.  B.,  and  to  his  heirs  and 


638  APPENDIX  OF  FORMS. 

assigns  forever,  subject  to  the  payment  of  two  hundred  dollars  a  year,  in  half  yearly 
payments,  to  my  widow  during  her  life,  in  lieu  of  her  right  of  dower  in  my  estate, 
[or  in  said  farm,]  and  subject  also  to  the  payment  by  the  said  A.  B.  of  a  bond  given 
by  me  to  H.  0.  for  1500  dollars,  money  loaned  for  my  use,  and  subject  to  the  pay- 
ment of  all  the  debts  which  I  may  owe  at  the  time  of  my  death." 

(Smith  V.  Wyckoff,  11  Paige,  50,  and  the  remarks  of  the  chancellor,  at  page 
57,  et  seq.)  »>, 


No.  101. 
CLAUSE  IN  A  WILL,  DIRECTING  TRUSTEES  TO   RECEIVE   THE   RENTS  AND 
PROFITS   OP   LANDS,   AND    APPLY   THEM   TO    THE   USE   OF    THE    BENEFI- 
CIARY,  ETC. 

"  I  hereby  appoint  my  executors,  hereinafter  named,  trustees  of  the  estate  of  my 
two  daughters,  hereby  authorizing  and  desiring  my  executors,  as  such  trustees,  to 
take  charge  of  all  such  portion  of  my  estate  as  is  herein  given  to  them  respectively, 
and  to  pay  over  to  them  respectively,  from  time  to  time,  the  rents,  interests  or  net 
income  thereof;  and  in  case  of  the  marriage  of  both  or  either  of  them,  it  shall  be 
sufficient  in  making  such  payments,  from  time  to  time,  to  take  the  receipt  of  my 
said  daughters  respectively,  without  the  signature  or  consent  of  their  respective 
husbands,  and  in  the  same  manner  and  with  the  like  effect  as  if  they  were  sole  and 
unmarried." 

Note  the  language  of  §  55,  1  R.  S.  728,  sub.  3,  is :  To  receive  the  rents  and 
profits  of  lands  and  apply  them  to  the  %Lse  of  any  person,  &c.  In  general,  it  is  desira- 
ble to  follow  the  language  of  the  statute  in  creating  a  trust,  but  it  has  been  held 
that  a  trust  to  pay  over,  &c.,  is  a  valid  trust  within  the  above  section.  (Gott  v. 
Cook,  7  Paige,  523.  Leggett  v.  Perkins,  2  Comst.  297,  306.  Mason  v.  Jones,  2 
Barb.  S.  C.  R.  229 ;  affirmed  on  appeal,  3  Comst.  3'^5.) 


No.  102. 
ANOTHER   FORM   OF  CHARGING  REAL  ESTATE  WITH   DEBTS  OR   LEGACIES. 

I  expressly  charge  the  payment  of  my  debts  and  of  the  legacies  herein  bequeathed 
upon  my  real  estate  as  the  primary  fund,  and  I  authorize  and  empower  my  execu- 
tors, hereinafter  named,  to  sell  the  whole,  or  any  part  thereof,  in  fee  simple,  at 

public  or  private  sale,  for  cash  or  a  reasonable  credit,  not  exceeding years, 

and  to  execute  proper  conveyances  of  the  same  to  the  purchaser  or  purchasers 
thereof,  and  to  apply  the  avails  in  the  payment  of  debts  and  legacies. 

The  above  is  a  general  power  in  trust.  (1  R.  S,  732,  734,  §  77,  94.  Selden  v. 
Vermilyea,  1  Barb.  S.  C.  R.  58.)     See  remarks  of  Edmonds,  J. 


No.  103. 
ANOTHER  FORM  OP  CHARGING  REAL  ESTATE,  BY  CREATING  A  TRUST. 
I  give  and  devise  my  farm  in  A.,  [describing  it,]  to  my  executor,  hereinafter 
named,  in  fee  simple,  in  trust,  to  sell  the  same  fcr  the  benefit  of  my  creditors. 

(1  R.  S.  728,  §  55.) 


APPENDIX  OF  FORMS.  639 

No.  104. 
ANOTHER  FORM  OF  DEVISE,  WHEN  THE  EXECUTORS  TAKE  THE  FEE  BY  IM- 
PLICATION. 

I  give  unto  my  two  daughters,  S.  and  M.,  the  remaining  two  fifths  of  my  estate, 
so  that  each  may  have  and  enjoy  the  interest  or  income  of  the  one  fifth  part  thereof, 
during  their  several  natural  lives,  and  at  their  deaths,  respectively,  I  will  the  share 
to  their  respective  lawful  issue,  their  heirs  and  assigns  forever. 

Item :  I  hereby  appoint  my  executors  hereinafter  named,  trustees  to  the  estate 
of  my  two  daughters,  hereby  authorizing  and  desiring  my  executors,  as  such  trus- 
tees, to  take  charge  of  all  such  portion  of  my  estate  as  is  herein  given  to  them  respect- 
ively, and  to  take  care  of,  manage  and  improve  the  same  to  the  best  advantage, 
and  to  pay  over  to  them,  respectively,  from  time  to  time,  the  rents,  interests  or  net 
income  thereof,  &c.  &c.,  as  in  No.  101,  supra. 

(Leggett  V.  Perkins,  2  Comst.  298;  remarks  of  Gardiner,  J.,  at  page  305,  306.) 


No.  105. 

A  DEVISE  DIRECTING  AN  ACCUMULATION  OF  RENTS  AND  PROFITS  FOR  THE 

BENEFIT  OF  INFANT  CHILDREN  OF  THE  TESTATOR. 

I  give  and  devise  all  the  residue  of  my  estate,  real  and  personal,  to  my  execu- 
tors in  trust,  to  receive  the  rents  and  profits  of  the  land,  and  the  interest  of  the 
personal  estate,  and  to  pay  and  appropriate  such  sums  as  may  be  necQssary  for  the 
respectable  support  and  education  of  my  minor  children,  until  they  shall  severally 
arrive  at  the  age  of  twenty-one  years,  and  that  the  surplus,  if  any,  be  accumulated 
for  the  benefit  of  the  said  minors,  until  the  expiration  of  their  minority. 

(See  Vail  v.  Vail,  4  Paige,  328 ;  Hunter  v.  Hunter,  17  Barb.  25 ;  Haxtun  v.  Corse, 
2  Barb.  Ch.  506;  1  R.  S.  726,  §  37;  Id.  728,  §  55,  sub.  4.) 


No.  106. 


CLAUSE  IN  A  WILL  CONTAINING  A  DEVISE  OR  BEQUEST  TO  A  RELIGIOUS  OR 
CHARITABLE  SOCIETY. 

I  give  and  devise  to  the  trustees  of  the  Presbyterian  Church  in the 

house  and  lot  in  which  I  now  live,  in  the  village  of ,  for  a  parsonage. 

And  I  also  bequeath  to  the  said  trustees  the  sum  of  one  thousand  dollars  for  the 
uses  and  purposes  for  which  the  said  trustees  are  authorized  by  law  to  take  and 
hold  property ;  and  I  authorise  my  executor  to  pay  the  same  to  the  order  in  writ- 
ing of  the  said  trustees.    Or — 

I  give  and  bequeath  to  *'  The  American  Board  of  Commissioners  for  Foreign 
Missions,"  one  thousand  dollars,  to  be  paid  to  the  person  who  shall  be  at  the  time 
of  such  payment  the  treasurer  of  the  said  board,  or  be  otherwise  authorized  by  the 
said  board  to  receive  it. 

Note.  (1.)  By  the  general  law,  a  corporation  is  not  authorized  to  take  a  devise 
of  real  estate,  unless  it  is  expressly  so  authorized  by  its  charter.     (2  R.  S.  57,  §  3.) 

(2.)  The  corporate  name  should  be  so  expressed  as  to  leave  no  doubt  of  the  in- 
tention of  the  testator,  as  to  the  object  of  his  bounty.    A  misnomer  does  not  vi- 


640  APPENDIX  OF  FORMS. 

tiate,  provided  the  corporation  intended  is  apparent.  (Angel  &  A  met  on  Corpora- 
tions, 78,  150.) 

(3.)  If  the  devise  or  bequest  be  to  a  benevolent,  charitable,  literary,  scientific,  re- 
ligious or  missionary  society,  association  or  corporation,  in  trust  or  otherwise,  by 
a  person  having  a  husband,  wife,  child  or  parent,  it  shall  not  pass  more  than  one 
half  part  of  his  or  her  estate,  after  the  payment  of  his  debts.  (L.  of  1860,  p.  607, 
oh.  360.) 

(4.)  By  the  laws  of  1848,  p.  447,  such  bequest  to  a  corporation  formed  under  said 
act,  is  not  valid  unless  made  and  executed  at  least  two  months  before  the  death 
of  the  testator.     (§  6.) 

(5.)  For  the  purposes  for  which  a  religious  society  may  hold  property,  see  the 
general  act,  3  R.  S.  292  et  seq.,  and  §  4,  p.  395.     2  R.  S.  604,  621.  5th  ed. 

No  interest  to  vest  in  s%iccessors  of  ecclesiastics.  (2  R.  S.  622,  5th  ed.  L.  of 
1855,  ch.  230.) 

(6.)  For  the  general  doctrine  of  charitable  bequests,  see  Williams  v.  Williams, 
(4  Seld,  525  et  seq.,)  and  the  cases  in  Willard's  Eq.  Jur.  569  to  598.  (2  Smith's 
Kep.  83.)     Trustees  of  Auburn  Th.  Sera.  v.  Kellogg,  (4  Kernan,  380.) 


No.  107. 
CLAUSE  IN   A    WILL    DIRECTING   THE    ACCUMULATION   OF  MONET   DLTIINO 
THE  LIFE  OF  THE  TESTATOR'S  DAUGHTER,  AND   ON  HER  DEATH,  THAT  IT 
BE  PAID  TO  THE    MINOR   CHILDREN   OF  THE   SAID   DAUGHTER,  WHO  ARB 
SUCH  AT  THE  DEATH  OF  THE  TESTATOR. 

I  direct  that  my  executor,  hereinafter  named,  loan  out,  on  bond  and  mortgage, 
one  thousand  dollars  of  my  estate  on  interest,  to  be  paid  semi-annually  to  himself, 
in  trust  to  pay  such  portion  of  it  as  may  be  necessary  for  the  support  of  my  daugh- 
ter E.,  in  case  of  the  inability  of  her  husband  to  support  her,  and  to  accumulate 
such  as  is  not  needed  for  her  support ;  and  on  the  death  of  my  said  daughter  E., 
all  the  said  principal  and  the  interest  thereon,  and  the  accumulations  thereof,  shall 
be  divided  among  the  minor  children  of  the  said  E.  who  are  in  being  at  the  time 
of  my  death. 

(See  1  R.  S.  773,  §  1,  3,  sub.  1.  Kilpatrick  v.  Johnson,  1  Smith's  Rep.  322, 
325,  326.) 


EXTRACTS  FROM  THE  EXISTING  STATUTES  OF  THE  STATE  OP  NEW  YORK, 
WITH  RESPECT  TO  THE  PROOF  AND  RECORDING  OF  DEEDS,  SHOWING  BE- 
FORE WHAT  OFFICERS  SUCH  PROOF  OR  ACKNOWLEDGMENT  MAY  BE  TAK- 
EN, IN  DIFFERENT  PARTS  OF  THE  WORLD. 

(3  Revised  Statutes,  5th  ed.  p.  46  et  seq.) 
§  4.  To  entitle  any  conveyance  hereafler  made,  to  be  recorded  by  any  county 
clerk,  it  shall  be  acknowledged  by  the  party  or  parties  executing  the  same,  or  shall 
be  proved  by  a  subscribing  witness  thereto,   before  any  one  of  the  following 
officers : 

If  acknowledged  or  proved  within  this  state ;  the  justices  of  the  supreme 
court,  judges  qf  county  courts,  mayors  and  recorders  of  cities,  or  commissioners  of 
deeds  [justices  of  the  peace  in  towns];  but  no  county  judge  or  commissioner  of 
deeds  for  a  county  or  city,  shall  take  any  such  proof  or  acknowledgment,  out  of 
the  city  or  county,  for  which  he  was  appointed. 

If  acknowledged  or  proved  out  of  this  state,  and  within  the  United  States ;  the 
chief  justice  and  associate  justices  of  the  supreme  court  of  the  United  States,  dis- 


APPENDIX  OF  FORMS.  641 

trict  judges  of  the  Uoited  States,  the  judges  or  justices  of  the  supreme,  superior  or 
circuit  court,  of  any  state  or  territory  within  the  United  States,  and  the  chief  judge 
or  any  associate  judge  of  the  circuit  court  of  the  United  States,  in  the  District  of 
Columbia ;  but  no  proof  or  acknowledgment,  taken  by  any  such  officer,  shall  enti- 
tle a  conveyance  to  be  recorded  unless  taken  within  some  place  or  territory,  to 
which  the  jurisdiction  of  the  court  to  which  he  belongs  shall  extend. 

Every  acknowledgment  or  proof  of  a  deed  or  mortgage  made  or  taken  before 
the  mayor  of  either  of  the  cities  of  Philadelphia  or  Baltimore,  or  before  any  consul 
of  the  United  States  resident  in  any  foreign  port  or  country,  or  before  a  judge  of 
the  highest  court  in  Upper  Canada  or  Lower  Canada,  and  certified  by  them  re- 
spectively, shall  be  as  valid  and  effectual  as  if  taken  before  one  of  the  justices  of 
the  supreme  court  of  this  state.     (1829,  ch.  222.)  . 

Every  acknowledgment  or  proof  of  a  deed  or  mortgage,  made  or  taken  before 
the  mayor  of  any  city  in  the  United  States,  and  certified  by  him,  shall  be  as  valid 
and  effectual  as  if  taken  before  one  of  the  justices  of  the  supreme  court  of  this 
state.     (1845,  ch.  109.) 

§  5.  The  proof  or  acknowledgment  of  any  deed  or  other  written  instrument  re- 
quired to  be  proved  or  acknowledged  in  order  to  entitle  the  same  to  be  recorded 
or  read  in  evidence,  when  made  by  any  person  residing  out  of  this  state,  and  within 
any  other  state  or  territory  of  the  United  States,  may  be  made  before  any  officer 
of  such  state  or  territory  authorized  by  the  laws  thereof  to  take  the  proof  and  ac- 
knowledgment of  deeds ;  and  when  so  taken  and  CQrtified  as  herein  provided,  shall 
be  entitled  to  be  recorded  in  any  county  in  this  etate,  and  may  be  read  in  evidence 
in  any  court  in  this  state,  in  the  same  manner  and  with  like  effect  as  proofs  and 
acknowledgments  taken  before  any  of  the  officers  now  authorized  by  law  to  take 
such  proofs  and  acknowledgments  :  Provided  that  no  such  acknowledgment  shall 
be  vaUd  unless  the  officer  taking  the  same  shall  know  or  have  satisfactory  evidence 
that  the  person  making  such  acknowledgment  is  the  individual  described  in  and 
who  executed  the  said  deed  or  instrument.     (1848,  ch.  195,  §  1.) 

§  6.  To  entitle  any  conveyance  or  written  instrument,  acknowledged  or  proved 
under  the  preceding  section,  to  be  read  in  evidence  or  recorded  in  this  state,  there 
shall  be  subjoined  or  attached  to  the  certificate  of  proof  or  acknowledgment,  signed 
by  such  officer,  a  certificate  under  the  name  and  official  seal  of  the  clerk,  register, 
recorder  or  a  prothonotary  of  the  county  in  which  such  officer  resides,  or  of  the 
county  or  district  court,  or  court  of  common  pleas  thereof,  specifying  that  such  offi^ 
cer  was  at  the  time  of  taking  such  proof  or  acknowledgment  duly  authorized  to 
take  the  same,  and  that  such  clerk,  register,  recorder  or  prothonotary  is  well  ac- 
quainted with  the  handwriting  of  such  officer,  and  verily  believes  that  the  signa- 
ture to  said  certificate  of  proof  or  acknowledgment  is  genuine.  (Same  ch.  §  2  as 
amended  1856,  cL  61,  §  2.) 

§  7.  The  acknowledgment  of  any  deed,  mortgage  or  other  conveyance  of  any 
real  estate  within  this  state,  and  of  any  contract  in  relation  to  such  real  estate,  and 
of  any  power  of  attorney  authorizing  the  conveying,  mortgaging  or  otherwise  dis- 
posing of  such  real  estate,  or  of  making  any  contract  in  relation  thereto  which  has 
been  or  shall  be  executed  by  an  officer  or  soldier  of  the  army  of  the  United  States 
employed  at  the  time  of  making  such  acknowledgment  within  the  territory  of  the 
republic  of  Mexico,  may  be  taken  within  such  territory  before  and  certified  by  any 
major-general,  brigadier-general  or  colonel  of  the  said  army,  to  whom  the  persoa 

Will.— 41 


642  APPENDIX  OF  FORMS. 

making  such  acknowledgment  shall  be  personally  known  at  the  time  of  making  the 
same.  The  certificate  of  any  acknowledgment  taken  and  certified  by  virtue  of  this 
act,  shall  state  the  place  at  which  it  was  taken,  and  the  fact  that  the  person  mak- 
ing the  same  is  an  officer  or  soldier  of  the  said  army,  of  which  facta  such  acknowl- 
edgment shall  be  presumptive  evidence.  Every  acknowledgment  so  taken  and 
certified  shall  have  the  same  force  and  eff"ect  in  all  respects  as  if  the  same  were 
taken  and  certified  within  this  state  by  an  officer  authorized  by  law  to  take  and 
certify  the  same.     (1847,  ch.  170.) 

§  8.  The  governor  of  this  state  is  hereby  authorized  to  name,  appoint  and  com- 
mission so  many  commissioners  in  such  of  the  other  states  and  territories  of  the 
United  States,  or  in  the  District  of  Columbia,  or  in  Canada,  as  he  may  deem  ex- 
pedient, provided  that  the  number  of  commissioners  shall  at  no  time  exceed  five  in 
any  one  city  or  county;  the  said  commissioners  shall  continue  in  office  for  four 
years,  and  shall  have  authority  to  take  the  acknowledgment  and  proof  of  the  ex- 
ecution of  any  deed,  mortgage,  lease  or  other  conveyance  of  any  lands,  tenements 
or  hereditaments,  lying  and  being  in  this  state,  or  of  any  contract,  assignment, 
transfer,  letter  of  attorney,  satisfaction  of  a  judgment  or  of  a  mortgage,  or  of  any 
other  writing  or  instrument  under  seal  to  be  used  or  recorded  in  this  state,  also  to 
administer  an  oath  or  affirmation,  to  any  person  or  persons  who  may  desire  to  make 
such  oath  or  affirmation.     (1850,  ch.  270,  §  1,  as  amended  1857,  ch.  788,  §  1.) 

§  9.  Any  acknowledgment  or  proof  taken  in  pursuance  of  the  powers  and  under 
the  directions  and  limitations  conferred  by  and  mentioned  in  this  act,  in  manner 
directed  by  the  laws  of  this  state,  with  respect  to  the  acknowledgment  or  proof  of 
deeds,  taken  by  any  officer  authorized  to  take  such  acknowledgment,  residing 
within  this  state,  and  certified  by  any  one  of  said  commissioners,  whose  appoint- 
ment is  authorized  by  this  act,  before  whom  the  same  shall  be  taken  or  made  under 
his  hand  and  official  seal ;  which  certificate  shall  be  indorsed  on  said  deed  or  other 
instrument  mentioned  in  the  first  section  of  this  act,  shall  when  authenticated  iu 
the  manner  hereinafter  provided,  be  entitled  to  be  recorded  in  any  county  in  this 
state,  and  shall  have  the  same  force  and  effect,  and  be  as  good  and  available  in  law 
for  all  purposes,  as  if  the  same  had  been  taken  or  made  before  any  officer  author- 
ized to  take  such  proof  or  acknowledgment,  residing  in  this  state :  and  any  affidavit 
or  affirmation  made  before  any  such  commissioner,  certified  and  authenticated  as 
aforesaid,  may  be  read  in  evidence,  and  shall  be  as  good  and  effectual  to  all  intents 
and  purposes,  as  if  taken  and  certified  by  an  officer  authoiized  to  administer  oaths, 
residing  in  this  state.     (1850,  ch.  270,  §  2.) 

§  10.  Every  commissioner  appointed  by  virtue  of  this  act,  shall  before  he  per- 
forms any  duty  under  and  by  virtue  of  his  said  appointment,  and  of  this  law,  take 
Bnd  subscribe  an  oath  or  affirmation  before  a  justice  of  the  peace,  or  some  other 
magistrate  in  the  city  or  county  in  which  he  shall  reside,  well  and  faithfully  to  ex- 
ecute and  perform  all  the  duties  of  such  commissioner,  under  and  by  virtue  of  the 
laws  of  the  State  of  New  York,  which  oath  or  affirmation  shall  be  filed  in  the  of- 
fice of  the  secretary  of  this  state,  and  every  such  commissioner  shall  also  before  he 
enters  upon  the  duties  of  his  office,  cause  to  be  prepared  an  official  seal,  in  which 
pViati  be  designated  his  name,  and  the  words  "  a  commissioner  of  deeds  for  the  state 
of  New  York,"  together  with  the  name  of  the  state  or  territory,  (or  country  if  in 
Canada,)  and  also  of  the  city  or  county  in  which  he  shall  reside,  and  for  which  he 
shall  have  been  appointed,  and  shall  transmit  to  and  cause  to  be  filed  in  the  office 


APPENDIX  OF  FORMS.  543 

of  the  secretary  of  state,  a  distinct  impression  of  such  seal,  taken  upon  wax  or  some 
other  substance  capable  of  receiving  and  retaining  a  clear  impression,  together  with 
his  signature  in  his  own  proper  writing.  (Same  ch.  §  3,  as  amended  1857,  ch; 
V88,  §  2.) 

§  11.  When  any  deed  or  other  instrument  shall  be  proved  or  acknowledged,  or 
any  oath  or  aflSrmation  shall  be  taken  before  any  commissioner  appointed  by  vir- 
tue of  this  act,  before  it  shall  be  entitled  to  be  used,  recorded  or  read  in  evidence, 
in  addition  to  the  preceding  requisites  there  shall  be  subjoined  or  aflBxed  to  the 
certificate,  signed  and  sealed  by  such  commissioner  as  aforesaid,  a  certificate  under 
the  hand  and  official  seal  of  the  secretary  of  state  of  this  state,  certifying  that  such 
commissioner  was  at  the  time  of  taking  such  proof  or  acknowledgment,  or  of  ad- 
ministering such  oath  or  affirmation,  duly  authorized  to  take  the  same,  and  that 
the  secretary  is  acquainted  with  the  handwriting  of  such  commissioner,  or  has 
compared  the  signature  to  such  certificate  with  the  signature  of  such  commissioner 
deposited  in  his  office,  and  has  also  compared  the  impression  of  the  seal  affixed  to 
such  certificate  with  the  impression  of  the  seal  of  such  commissioner  deposited  in 
his  office,  and  that  he  verily  believes  the  signature  and  the  impression  of  the  seal 
of  the  said  certificate  to  be  genuine.     (1850,  ch.  270,  §  4.) 

§  12.  No  commissioner  appointed  under  or  by  virtue  ofthis  law,  shall  be  author- 
ized to  take  the  proof  or  acknowledgment  of  any  deed  or  instrument,  or  to  admin- 
ister any  oath  or  affirmation  at  any  place  other  than  within  the  city  or  county  within 
which  he  shall  reside  at  the  time  of  his  appointment,  and  every  certificate  of  any 
such  commissioner  to  any  proof  or  acknowledgment  taken  before  him,  or  to  any 
oath  or  affirmation  administered  by  him,  shall  specify  the  day  on  which,  or  the  city 
or  town  and  county  within  which  the  same  was  taken  or  administered ;  and  with- 
out such  specification  the  said  certificate  shall  be  wholly  invaUd,  inoperative  and 
void.  (Same  ch.  §  5.) 
*  *  *  *  * 

§  17.  Any  deed  or  conveyance  or  other  written  instrument,  affecting  real  estate 
within  this  state,  proved  or  acknowledged  in  any  other  state  or  territory  of  the 
United  States,  according  to  the  laws  of  such  state  or  territory,  where  the  grantor 
or  grantors  of  such  deed  or  conveyance  and  the  officer  before  whom  the  same  shall 
be  proved  or  acknowledged  shall  be  dead ;  and  when  such  proof  or  acknowledg- 
.rnent  shall  be  certified  as  herein  provided,  may  be  recorded  in  any  county  of  the 
Btate,  and  may  be  read  in  evidence  in  any  court  of  this  state,  in  the  same  manner 
and  with  the  like  effect  as  though  the  same  had  been  proved  or  acknowledged  as 
required  by  the  laws  of  this  state,  provided  that  the  death  of  the  grantor  or  grant- 
ors, and  of  the  officer  before  whom  the  same  shall  be  proved  or  acknowledged, 
shall  be  proved  by  the  affidavit  of  one  or  more  persons,  sworn  to  before  some  offi- 
cer authorized  by  law  to  administer  oaths  in  such  state  or  territory,  and  certified 
as  herein  provided.     (1858,  ch.  259,  §  1.) 

§  18,  To  entitle  such  deed  or  conveyance,  or  other  written  instrument,  to  be 
read  in  evidence  or  recorded  in  this  state,  there  shall  be  annexed  to  the  certificate 
of  proof  or  acknowledgment,  signed  by  such  officer,  a  certificate  under  the  name 
and  official  seal  of  the  clerk  or  register  of  the  county  in  which  such  officer  resided, 
BpecifyLng  that  such  officer  was,  at  the  time  of  taking  such  proof  or  acknowledg- 
ment, duly  authorized  to  take  the  same,  and  that  such  clerk  or  register  is  well 
acquainted  with  the  handwriting  of  such  officer,  and  verily  believes  that  the  signa- 


C44  APPENDIX  OF  FORMS. 

ture  to  said  certificate  of  proof  or  acknowledgment  is  genuine,  and  that  such  deed 
or  conveyance  or  written  instrument,  is  proved  or  acknowledged  in  all  respects,  as 
required  by  the  laws  of  such  state  or  territory.  There  shall  also  be  a  like  certificate 
of  such  clerk  or  register,  attached  to  the  jurat  or  affidavit,  proving  the  death  of  the 
grantor  or  grantors,  and  of  the  officer  before  whom  the  deed  or  written  instrument 
was  proved  or  acknowledged,  certifying  that  such  officer  was,  at  the  time  of  taking 
such  affidavit  or  affidavits,  duly  authorized  to  take  the  same,  and  that  such  clerk 
or  register  is  well  acquainted  with  the  handwriting  of  such  officer,  and  verily  be- 
lieves that  the  signature  to  such  jurat  or  affidavit  is  genuine.  Such  affidavit  or 
affidavits  .shall  be  recorded  with  such  deed  or  other  written  instrument,  and  be 
presumptive  evidence  of  the  facts  therein  stated.     (Same  ch.  §  2.) 

§  19.  [Sec.  5,]  If  the  party  or  parties  executing  such  conveyance,  shall  be,  or 
reside,  in  any  state  or  kingdom  in  Europe,  or  in  North  or  South  America,  the  same 
may  be  acknowledged  or  proved  before  any  minister  plenipotentiary,  or  any  min- 
ister extraordinary,  or  any  charge  des  affaires  of  the  United  States,  resident  and 
accredited  within  such  state  or  kingdom.  If  such  parties  be  or  reside  in  France, 
such  conveyance  may  be  acknowledged  or  proved  before  the  consul  of  the  United 
States,  appointed  to  reside  at  Paris ;  and  if  such  parties  be  or  reside  in  Russia,  such 
conveyance  may  be  acknowledged  or  proved  before  the  consul  of  the  United  States, 
appointed  to  reside  at  St.  Petersburgh. 

§  20.  [Sec.  6.]  If  the  party  to  such  conveyance  be  or  reside  within  the  United 
Kingdom  of  Great  Britain  and  Ireland,  or  the  dominions  thereunto  belonging,  the 
same  may  be  acknowledged  or  proved  before  the  mayor  of  the  city  of  London,  the 
mayor  or  chief  magistrate  of  the  city  of  Dublin,  or  the  provost  or  chief  magistrate 
of  the  city  of  Edinburgh,  or  before  the  mayor  or  chief  magistrate  of  Liverpool,  or 
before  the  consul  of  the  United  States,  appointed  to  reside  at  London. 

§  21.  [Sec.  7.]  Such  proof  or  acknowledgment,  duly  certified  under  the  hand  and 
seal  of  office  of  such  consuls,  or  of  the  said  mayors  or  chief  magistrates  respectively, 
or  of  such  minister  or  charge  des  affaires,  shall  have  the  like  force  and  vahdity,  as 
if  the  same  were  taken  before  ft  justice  of  the  supreme  court  of  this  state. 

§  22.  The  officers  authorized  by  the  fifth  and  sixth  sections  of  chapter  three,  part 
second,  of  the  revised  statutes,  to  take  the  proof  and  acknowledgment  of  deeds 
conveying  real  estate,  and  also  any  other  consul  or  vice-consul  or  minister  resident 
of  the  United  States,  appointed  to  reside  at  any  foreign  port  or  place,  are  hereby ' 
authorized  to  administer  oaths  or  affirmations  to  any  person  or  persons  who  may 
desire  to  make  such  oath  or  affirmation ;  and  any  affidavit  or  affirmation  made  be- 
fore any  such  officer,  and  certified  and  authenticated  as  provided  in  the  seventh 
section  of  said  chapter  in  respect  to  the  proof  and  acknowledgment  of  a  deed  con- 
veying real  estate,  may  be  read  in  evidence  and  shall  be  as  good  and  effectual  to 
all  intents  and  purposes  as  if  taken  and  certified  by  an  officer  authorized  to  admin- 
ister oaths,  residing  in  this  state,  and  no  other  proof  of  the  official  character  of  such 
officer  than  the  certificate  annexed  to  such  affidavit  or  affirmation  shall  be  required. 
(1854,  ch.  206.) 

§  23.  [Sec.  8.]  Every  such  conveyance  heretofore  made,  or  hereafter  to  be  made, 
may  be  acknowledged  or  proved,  without  the  United  States,  before  any  person 
specially  authorized  for  that  particular  purpose,  by  a  commission  under  the  seal  of 
the  supreme  court  of  this  state,  to  be  issued  to  any  reputable  person  residing  in  or 
going  to  the  country  where  such  proof  or  acknowledgment  is  to  be  taken ;  and  the 


APPENDIX  OF  FORMS.  645 

acknowledgment  or  proof  so  taken  shall  be  of  the  like  force  and  validity  as  if  the 
same  were  taken  before  a  justice  of  the  supreme  court  of  this  state. 

§  24  The  governor  of  this  state  is  hereby  authorized  t^  appoint  and  commission 
one  or  more,  and  not  exceeding  three  commissioners,  in  each  of  the  following  cit- 
ies- London,  Liverpool  and  Glasgow  in  Great  Britain,  and  Paris  and  Marseilles  in 
France  who  shall  continue  in  office  for  four  years,  and  untilasuccessor  shall  be  ap- 
pointed, and  shall  have  authority  to  take  the  acknowledgment  or  proof  of  the  exe- 
cution of  any  deed  or  written  instrument  to  be  recorded  or  read  in  evidence  m  this 
state,  except  bills  of  exchange,  promissory  notes,  and  last  wills  and  testaments; 
and  also  to  administer  an  oath  or  affirmation  to  any  person  or  persons  who  may 
desire  to  take  the  same,  and  to  certify  the  taking  of  such  oath  or  affirmation,  and 
also  to  certify  the  existence  of  any  patent,  record  or  other  document,  remaming  of  ^ 
record  in  any  public  office  or  official  custody  in  Great  Britain  or  France,  and  the 
correctness  of  a  copy  of  any  such  patent,  record  or  other  documerit.  The  certifi- 
cate of  any  one  of  such  commissioners,  under  his  official  seal,  and  subscribed  by 
him  in  regard  to  the  acknowledgment  or  proof  of  the  execution  of  any  such  deed 
or  written  instrument,  or  the  taking  of  such  oath  or  affirmation,  or  the  existence  or 
correctness  of  a  copy  of  such  patent,  record  or  document,  when  authenticated  by 
the  secretary  of  state,  as  hereinafter  mentioned,  shall  have  the  same  effect  to  au- 
thorize the  recording  or  reading  in  evidence  of  such  deed  or  written  instrument, 
oath  or  affidavit,  patent,  record  or  document,  as  is  given  by  law  to  like  certificatea 
made  by  justices  of  the  supreme  court  of  this  state,  or  to  any  certificate  or  exem- 
plification by  any  office  of  this  state  of  any  patent,  record  or  other  document. 

(1858,  ch.  308,  §  1.)  ^ ,     .        .     .  j 

§  25  Before  any  such  deed  or  other  instrument,  oath  or  affidavit,  patent,  record 
or  document,  shall  be  entitle.l  to  be  used,  recorded  or  read  in  evidence,  in  addition 
to  the  preceding  requisites,  there  shall  be  subjoined  or  affixed  to  the  certificate 
signed  and  sealed  by  such  commissioner  as  aforesaid,  a  certificate  under  the  hand 
and  official  seal  of  the  secretary  of  state  of  this  state,  certifying  that  such  commis- 
sioner was,  at  the  time  of  taking  such  proof  or  acknowledgment  or  of  administer- 
ing such  oath  or  affirmation,  duly  authorized  to  take  the  same,  and  that  the  secre- 
tary is  acquainted  with  the  handwriting  of  such  commissioner,  or  has  compared 
the  signature  to  such  certificate  with  the  signature  of  such  commissioner  deposited 
.  in  his^office,  and  has  also  compared  the  impression  of  the  seal  affixed  to  such  certi- 
ficate with  the  impression  of  the  seal  of  such  commissioner  deposited  in  his  office, 
and  that  he  believes  the  signature  and  the  impression  of  the  seal  of  the  said  certi- 
ficate to  be  genuine.     (Same  ch.  §  2.) 

§  26  Every  commissioner  appointed  by  virtue  of  this  act,  before  performing  any 
duty  or  exercising  any  power  in  virtue  of  his  appointment,  shall  take  and  subscribe 
an  oath  or  affirmation  before  a  person  authorized  to  administer  such  oath  or  affirm- 
ation by  the  laws  of  this  state,  or  before  a  judge  or  clerk  of  one  of  the  courts  of 
record  of  the  kingdom  or  empire  in  which  such  commissioner  shall  reside,  well  and 
faithfully  to  execute  and  perform  all  the  duties  of  such  commissioner  under  and  by 
virtue  of  the  laws  of  the  state  of  New  York ;  and  shall  also  cause  to  be  prepared  an 
official  seal,  on  which  shall  be  designated  his  name,  and  the  words  "commissioner 
of  deeds  for  the  state  of  New  York,"  with  the  name  of  the  city  for  which  he  shall 
be  appointed ;  and  shall  cause  a  distinct  impression  of  such  seal,  taken  upon  wax 


646  APPENDIX  OF  FORMS. 

or  some  other  substance  capable  of  receiving  and  retaining  a  clear  impression,  to- 
gether with  his  signature  in  his  own  proper  writing,  and  the  oath  or  aflQrmation 
above  in  this  section  mentioned,  duly  certified  by  the  person  before  whom  it  may 
be  taken,  to  be  filed  in  the  office  of  the  secretary  of  this  state.  (Same  ch.  §  3.) 
******* 
§  30.  The  fees  of  such  commissioner  for  services  under  this  act  shall  be  as  fol- 
lows :  In  Great  Britain,  for  administering  each  oath  and  certifying  the  same,  and 
for  making  each  certificate  attached  to  a  patent,  record  or  other  document,  one 
shilling  sterhng ;  in  France,  one  franc  and  twenty-five  centimes.  In  Great  Britain, 
for  taking  each  acknowledgment  or  proof  of  any  deed  or  written  instrument  to  be 
recorded  or  read  in  evidence,  four  shillings  sterling ;  in  France,  five  francs.  (Same 
ch.  §  7.) 


INDEX 

TO  APPENDIX  OF  FORMS. 


[The  flgores  In  the  margin  refer  to  the  number  of  the  form,  and  those  on  the  right  hand 

to  the  page.] 


A 

ACKNOWLEDGMENTS,  PROOFS,  &c.,  563,  565. 
No.  1 — where  party  is  known  to  the  officer,  563. 

2 — the  like,  with  notice  of  erasures,  563. 

3 — when  the  identity  of  the  party  is  proved  by  a  witness,  563L 

4 — when  proved  by  a  known  subscribing  witness,  564. 

5 — the  like,  when  subscribing  witness  is  not  known,  564. 

6 — by  husband  and  wife,  both  known  to  the  officer,  564. 

7 — the  like,  when  both  are  unknown,  565. 

8 — the  like,  when  husband  is  known  and  wife  is  not,,  565. 

9 — the  like,  by  two  husbands  and  their  wives,  known,  566. 
1 0 — the  like,  by  wife  alone,  566. 
11 — when,  executed  by  an  attorney  in  fact,  566. 
12 — by  an  executor  or  trustee,  566. 
13 — by  a  sheriflf,  or  late  sheriff,  567. 
14 — by  under  sheriff  or  deputy,  567. 

15 — by  an  infant,  after  he  comes  of  age,  to  confirm  his  deed,  567. 
16 — by  a  moneyed  corporation,  567. 
17 — by  a  religious  corporation,  568. 

statute  as  to  acknowledgments,  640,  et  seq^ 
AGREEMENTS,  568  to  575. 

18 — contract  to  convey  property,  568. 
19— the  like,  569. 

20— the  like,  for  the  purchase  of  a  freehold  estate,  with  covenants,  569. 
21 — the  like,  for  sale  of  a  city  lot,  and  to  erect  buildings,  571. 
22 — the  like,  for  sale  of  a  farm,  with  clause  of  forfeiture,^  573. 
23 — the  like,  for  sale  of  real  estate,  by  attorney,  573. 
[647] 


648  INDEX  TO  APPENDIX  OF  FORMS. 

AGREEMENTS— con^mt/e^Z. 
No.  24 — contract  not  to  erect  nuisances,  574. 

25— the  like,  by  a  trustee,  to  convey  lands,  575. 
ANNUITIES,  576. 

ANTE-NUPTIAL  SETTLEMENT.     See  Marriage  Settlements,  625. 
ASSIGNMENTS, 

26 — of  a  mortgage,  576.  , 

27 — a  short  form  of  do.  577. 

28 — of  a  lease,  by  the  lessor,  to  a  third  person,  577. 

29 — of  a  lease  by  the  lessee,  578. 

30 — a  iihort  form  of  same,  578. 

31 — of  a  contract  for  the  purchase  of  a  farm,  the  assignee  agreeing  to  per- 
form, 579. 

:52-— in  .trust  for  benefit  of  creditors,  giving  preferences,  579. 

B 

BARGAIN  AND  SALE.    See  Cohtbtances,  582. 
BOND, 

62 — usual  ibrmotfi  accompanying  a  mortgage,  603. 

c 

CODICILS.    See  Wills,  No.  97,  p.  636. 
CONVEYANCES  BT  DEED  AND  MORTGAGE,  582. 

33 — bargain  and  «de  without  covenants,  582. 

34 — the  like,  w'lih  covenant  of  warranty,  582. 

35 — ^quit-claim  deed,  &84. 

36 — the  like,  with  covenants  against  grantor's  own  acts,  584. 

37 — grant  of  an  estate  in  fee,  under  the  statute,  584. 

38 — the  like,  with  coveDaE^s,  585. 

39 — full  covenant  deed,  a  «bort  form,  585. 

40 — the  like,  the  usual  form,  S85,  586. 

41 — the  like,  subject  to  incunabraaeee,  586. 

42— deed  to  a  corporation,  587. 

43 — the  like,  upon  condition,  587. 

44 — deed  by  a  corporation,  587^ 

45 — by  husband  and  wife,  588. 

46 — by  wife  alone,  588. 

47^-deed  with  full  covenants,  and  oevenant  against  the  erection  of  a  nui- 
sance, 588. 

48 — by  married  woman,  of  her  real  estate,  =under  the  act  of  1860,  with  as- 
Bent  of  her  husband,  590. 

49 — the.  like,  without  his  assent,  by  order -cf  county  court,  591. 
CONVEYANCES, 

by  persons  acting  in  official  or  fiduciary  eapacity,  591  et  seq. 

50 — sheriff's  deed  on  foreclosure  of  a  mortgage,  591,  592. 

51 — referee's  deed  on  foreclosure  of  a  mortgage,  593. 

52 — deed  of  special  guardian,  on  the  sale  of  an  infant's  red  estate,  by  oraer 
af£0urtj594. 


INDEX  TO  APPENDIX  OF  FORMS.  549 

CONVEYANCES— cowimwed 
No.  53— sheriff 's  deed  on  sale  of  real  estate,  by  virtue  of  an  execution,  to  the 

purchaser,  595. 
54 — the  like,  to  a  redeeming  creditor,  596. 

65— sheriff's  certificate,  on  sale  of  real  estate,  given  to  the  purchaser,  596. 
56 — deed  of  executors,  under  a  power  in  a  vtrill,  597. 
57— referee's  deed  in  partition,  by  order  of  court,  69a 
58— deed  of  a  right  of  way,  599. 
59 — conveyance  by  lease  and  release,  600. 
60 — deed  of  exchange,  601. 

61— short  mortgage,  without  power  of  sale,  and  with  covenant,  602. 
62 — usual  form  of  bond  accompanying  mortgage,  603. 
63— mortgage  without  bond,  with  power  of  sale' and  covenant  to  pay,  604. 
64-the  hke,  with  bond,  providing  that  the  whole  shall  become  due  on  any 

default,  605.  ' 

65— mortgage  with  bond  and  power  of  sale,  with  covenant  to  insure  against 
fire,  607,  60S.  ^ 

66-mortgage  to  executors,  with  bond,  power  of  sale,  and  covenant  to 

pay,  608. 
67— mortgage  by  and  to  a  corporation,  with  bond  and  covenant,  610. 
68— deed  of  mortgaged  premises,  on  foreclosure  by  advertisement,  under 

the  statute,  611,  612. 
69— satisfaction  piece,  of  a  mortgage,  613. 

Covenants,  613  et  seq. 
70— general  form  of  covenant  in  a  deed,  614. 
'  ^  from  several  persons  to  one,  614. 

72— covenant  by  lessee  to  pay  taxes,  614. 
'^~  to  repair  during  the  term,  614. 

covenants  in  a  full  covenant  deed.  No.  40,  585,  586. 

1,  covenant  of  seisin,  585. 

2,  for  quiet  enjoyment,  585. 

3,  against  incumbrances,  586. 

4,  for  further  assurance,  586. 

5,  of  warranty,  586. 

74— covenant  to  conduct  a  farm  in  a  good  husbandlike  manner,  615. 
to  renew  the  lease,  615. 
to  grant  a  right  of  way  to  lessee,  615. 
special  ones,  in  a  lease,  619  et  seq. 

D 

DEED.     See  Conveyances,  supra,  582  et  seq. 
bargain  and  sale  without  covenants,  582. 

with  covenants,  582. 
quit-claim,  584. 

with  covenants  against  grantor's  own  acts,  584. 
grant  under  the  statute,  584. 
with  covenants,  585. 


650  INDEX  TO  APPENDIX  OF  FORMS. 

DEED — continued. 

with  full  covenants,  585,  586. 
subject  to  incumbrances,  586. 
to  a  corporation,  587. 

upon  condition,  587. 
by  a  corporation,  587. 

husband  and  wife,  588. 
wife  alone,  588. 
with  full  covenants,  and  a  covenant  not  to  erect  a  nuisance,  588. 
by  married  woman  of  her  real  estate,  under  the  act  of  1860,  with  assent  of 

her  husband,  590. 
the  like,  without  his  assent,  by  order  of  court,  591. 
sheriff's  deed,  591,  592,  594. 
referee's  deed  on  foreclosure,  593. 
of  special  guardian,  of  infants'  estate,  594. 
of  sheriff  under  execution,  595,  596. 
of  executors  under  a  power,  597. 
of  referees  in  partition,  598. 
of  right  of  way,  599. 
of  lease  and  release,  600. 
of  exchange,  601. 
of  mortgage,  short  form,  602. 
usual  form,  603. 
without  bond,  604. 

with  bond,  providing  that  the  whole  shall  become  due,  on  de- 
fault, 605. 
mortgages,  various  forms,  607-610. 
on  foreclosure  of  mortgages,  611-613. 
DEVISES.     SeeWiLza. 

E 

EMINENT  DOMAIN,  616. 

77 — form  of  record  of  assessment  of  damages,  616. 
EXCEPTION, 

78 — of  right  of  way  in  a  deed  or  lease,  619. 

F 

FIXTURES.    See  note,  621. 

Q 

GRANT, 

of  an  estate  in  fee,  under  the  statute,  without  covenants,  584. 

with  covenants,  585. 


HfFANTS, 

various  devises  in  favor  of,  639,  640. 


INDEX  TO  APPENDIX  OP  FORMS.  651 

J 

jomTHRE, 

provided  for  in  a  maxriage  settlement,  628. 


LANDLORD  AND  TENANT,  619. 
No.  79 — lease  with  special  covenants,  619  et  seq. 
80 — short  lease,  with  chattel  mortgage,  622. 
81 — short  agreement  between  landlord  and  tenant,  622,  623. 
82 — short  agreement  for  lease  of  a  single  room,  624. 
tenant's  agreement  accepting  the  same,  625. 
LEASE.    See  Landlord  akd  Tenant,  619. 

M 

MARRLiGE  SETTLEMENTS,  625  et  seq. 

83 — ante-nuptial  settlement  of  personal  property,  625,  626,  627. 

84 — the  like  of  real  property  belonging  to  the  intended  wife,  reserving  a 

power,  627,  628. 
85 — power  to  trustees  to  sell  and  reinvest,  628. 
86— clause,  when  the  real  estate  comes  from  the  hnsband,  and  is  intended 

as  a  jointure,  628,  629. 
87 — ante-nuptial  settlement  of  the  real  estate  of  the  intended  wife,  to  the 

use  of  herself  for  life,  with  contingent  remainders  to  their  issue,  which 

open  to  let  in  after-born  children,  629,  630. 
88 — ante-nuptial  agreement,  without  the  intervention  of  trustees,  reserving 

a  power  to  make  a  will,  630,  631. 
89 — post-nuptial  settlement  of  the  estate  of  the  wife,  632,  633. 
MORTGAGES, 

61 — short  mortgage,  without  power  of  sale,  and  with  covenants,  602. 
62 — usual  form  of  bond  accompanying  a  mortgage,  603. 
63 — mortgage  without  bond,  with  power  of  sale  and  covenants  to  pay,  604. 
64 — the  like  with  bond,  providing  that  the  whole  shall  become  due  on  any 

default,  605. 
65 — the  like,  with  bond  and  power  of  sale,  with  covenant  to  insure  against 
fire,  607,  608. 

66 —  to  executors,  with  bond  and  power  of  sale,  608. 

67 —  by  and  to  a  corporation,  with  bond  and  covenant,  610. 

68 — deed  of  mortgaged  premises,  on  foreclosure  by  advertisement,  under 

the  statute,  611,  612. 
69 — certificate  of  discharge  of  a  mortgage,  or  satisfaction  piece,  613. 
80 — mortgage  of  chattels  in  a  lease,  622,  and  notes,  621. 


INDEX  TO  APPENDIX  OF  FORMS. 


POST-NUPTIAL  SETTLEMENT,  No.  89,  pages  632,  633. 
POWER  OP  ATTORNEY, 

90 — to  convey  real  estate,  with  a  power  of  substitution,  633. 

92 — of  revocation  of  power  of  attorney,  634. 

93 —  and  appointment,  634. 

94 — in  trust  in  a  will  or  deed,  635. 

95 — not  in  trust,  in  a  will,  635. 

R 

RENT, 

79 — form  of  reserving,  in  a  lease,  619,  620. 
See  Landlord  and  Tenant. 
REFEREE'S 

51 — deed  on  foreclosure,  593. 

57 —        on  partition,  593. 
BEVOCATION, 

92 — of  a  power  of  attorney,  634. 

93 — of,  and  appointment  in  a  marriage  settlement,  634. 

s 

SATISFACTION  PIECE 

69 — of  a  mortgage,  613. 
SHERIFF'S  DEED, 

53 — on  a  sale  by  execution,  594. 

50 — on  foreclosure  of  a  mortgage,  591,  592. 

55 — certificate  on  sale  by  execution,  596. 
SPECIAL  GUARDIAN'S 

52 — deed  of  infant's  estate,  594. 
SUBSTITUTION, 

91 — of  an  attorney,  633. 
STATUTE, 

as  to  acknowledgment  and  proof  of  deeds,  showing  before  whom  to  be 
taken,  640. 

T 

TRUSTS.    See  Assignments,  No.  32,  p.  579.    Marmage  Skttlements,  625  etseq. 

w 

WAY, 

58— deed  of  right  of,  through  grantor's  land,  599. 
78 — reservation  of  right  of,  in  a  lease  or  deed,  619. 


INDEX  TO  APPENDIX  OF  FORMS.  653 

WILL, 

No.  96 — of  real  and.  personal  property,  636. 
97 — codicil  to  a  will,  636. 
98 — devising  to  a  married  woman  an  estate  in  fee,  with  a  beneficial  power 

of  disposition,  637. 
99 — providing  for  the  accumulation  of  the  income  of  real  estate  for  the  ben- 
efit of  infant,  &c.,  637. 
100 — charging  the  testator's  real  estate  as  the  primary  fund  to  pay  debts  and 

legacies,  637. 
101 — directing  trustees  to  receive  the  rents  &c.,  and  apply  them  to  the  use 

of  the  beneficiary,  638. 
102 — another  form  of  charging  real  estate  with  the  payment  of  debts  and 

legacies,  638. 
103 — another  form  of  charging  by  creating  a  trust,  638. 
95 — a  power  and  not  a  trust,  in  a  will,  635. 
104 — devise  when  the  executors  take  the  fee  by  implication,  639. 
105 — directing  the  accumulation  of  rents  for  infants,  639. 
106 — containing  a  devise  to  a  religious  corporation,  639. 
107 — directing  an  accumulation  for  a  child,  and  on  its  death  to  its  issue,  640 


INDEX. 


ABATEMENT 

of  the  freehold,  a  mode  of  ouster,  313. 

in  favor  of  post  testamentary  children,  497,  498. 
ABEYANCE, 

freehold  not  to  be  in  at  common  law,  327. 
ABSTRACTS, 

nature  and  object  of,  527,  528. 

Bearching  for  incumbrances,  529. 

judgments  and  other  liens,  considered,  529,  530. 

how  long  a  lien  on  land,  529,  530. 

judgment  docketed  is  notice,  531. 

when  entered  up  against  a  dead  person,  532. 

when  and  how  discharged  of  record,  533,  534. 

satisfaction  piece,  to  be  filed,  534. 

town  collector's  bonds,  535. 

tax  assessments,  when  a  lien,  536. 

specific  liens,  by  mortgage,  537. 

of  title  by  descent,  539  et  seq. 
by  devise,  541  ei  seq. 

when  estate  divided  among  many,  542. 

when  specific  performance  denied,  543. 

of  titles  under  judicial  sales,  and  under  powers,  544,  545. 

of  right  of  purchaser  to  the  original  deeds,  546. 

when  deeds  should  be  recorded,  548. 

when  wills  should  be  recorded,  549. 

when  title  is  acquired  by  adverse  holding,  550. 

farm  and  arrangement  of  abstracts,  551  et  seq. 

duty  of  counsel  with  respect  to,  556,  557. 

of  the  party  by  whom  deed  should  be  prepared  and  paid  for,  558-562. 
[655] 


656  INDEX. 

ACCOUNT 

between  mortgagor  and  mortgagee,  128. 

tenants  in  common  and  joint  tenants,  188. 
in  what  cases  allowed,  188. 
ACKNOWLEDGMENT, 

how  taken,  and  before  what  officers,  122,  388,  389,  390;  and  see  Appendix 

for  statute,  and  various  forms, 
by  a  married  woman,  123,  390,  391. 
when  proof  may  be  taken,  123. 
required  as  to  execution  of  deeds,  123,  373, 
what  fact  the  officer  must  certify,  390. 
when  feme  covert  may  make,  without  her  husband,  391. 
how  made  by  a  corporation,  or  by  an  attorney,  393. 

non-residents,  393. 
officer  taking,  must  know  party,  394. 
or  the  subscribing  witness,  when  proved,  394. 
need  not  know  the  identifying  witness,  394. 
what  facts  witness  must  state,  394. 

taking  proofs  or  acknowledgments  is  a  ministerial  act,  399. 
alterations  should  be  noted  by  the  officer,  401. 
ACTIONS, 

all  real  and  possessory,  abolished  by  the  code  of  procedure,  351,  352. 
other  remedy  substituted,  351,  352. 
for  use  and  occupation,  99,  214. 
for  rent,  212-214. 
ADMINISTRATORS.    See  Executors  and  Administkatoks,  261,  316,  340,  362. 
ADVANCEMENT, 

rule  as  to  in  law  of  descents,  338. 
what  constitutes  such,  338. 
how  value  thereof  to  be  ascertained,  338. 
mere  support  of  child,  not  such,  338. 
ADVERSE  ENJOYMENT, 

how  it  differs  from  a  prescription,  351. 
statute  of  limitations  as  to  real  property,  351,  352. 
what  is  an  entry  to  avoid  it,  352. 

as  against  the  people,  limitation  is  40  years,  in  other  cases  20  years,  351. 
extinguishes  right  of  former  owner,  351.     ^ee  Adverse  Possession.    Lim- 
itations, Statute  of. 
ADVERSE  POSSESSION, 
doctrine  of,  stated,  353. 
object  of  the  statutes,  353. 
two  classes  of  cases,  353,  354. 
constructive,  excluded  as  to  large  tracts,  354. 
occupation  not  under  judgments  or  writings,  354. 
actual  occupancy,  354. 
color  of  title,  what  it  is,  354,  355. 
defendant  not  bound  to  produce  deed,  356» 


INDEX  557 

ADVERSE  TOSS'ESSIO'N— continued. 

caimot  be  founded  on  a  void  one,  356. 

nor  upon  one  founded  in  fraud,  356. 
possession  of  one  tenant  in  common  the  possession  of  both,  356. 
must  be  an  ouster  to  enable  one  to  sue  his  companion,  357. 
benefit  of,  lost  by  a  recognition  of  the  owner's  title,  357. 
rule  as  between  landlord  and  tenant,  357. 
effect  of  statute  of  limitations  upon  rights,  351,  358. 
disabilities  which  prevent  the  statute  from  running,  358,  359. 
■when  statute  begins  to  run,  359. 
successive  disabilities  not  allowed,  359,  360. 
when  feme  covert  entitled  to  10  years  extra,  360. 

conveyance  of  land,  held  adversely,  void  against  the  party  so  holding,  360. 
good  as  to  all  the  world  besides,  360. 
purchase  of  lands  held  adversely,  void,  371. 
when  a  misdemeanor,  371. 
AIR, 

man  who  erects  a  building  on  his  own  land  entitled  to,  218,  219. 
not  subject  of  grant,  219. 
remedy  for  obstructing,  219. 
AGREEMENTS,  EXECUTORY, 

when  extinguished,  304,  305,  306. 

must,  for  sale  of  land,  be  in  writing  and  subscribed  by  party  or  his  attcrney, 
375,  376. 
ALIEN, 

his  right  at  common  law,  45. 

by  statute,  on  filing  affidavit,  45,  46. 
under  law  of  descent,  318,  319,  320.     See  Descent. 
as  devisee,  477,  602.     See  Devise. 
ALIENATION,  V 

an  inseparable  incident  of  an  estate  in  fee  simple,  51. 
power  of,  when  suspended,  void,  164,  279,  280. 
mode  of.  Part  IIL,  312  et  seq. 
title  by,  369  etseq. 
ALLODIAL, 

mode  of  holding  land  in  this  state,  42. 
ALTERNATE  ESTATES, 

definition  of  the  term,  169. 
AMBIGUITY, 

of  two  kinds,  patent  and  latent,  402. 
how  explained  and  defined,  402. 
if  patent,  cannot  be  explained,  402. 
latent,  may  be  removed  by  proof,  402. 
maxims  with  respect  to,  402. 
ANCESTOR, 

may  bind  the  heir  for  debts,  339. 
ANCIENT  LIGHTS, 

not  allowed  by  prescription  here,  349. 

Will.— 42 


^58  INDEX 

ANNUITIES, 

meaning  of  the  term,  203. 
wherein  it  differs  from  rent,  203. 
ANTE-NUPTIAL  AGREEMENTS, 
by  what  rule  governed,  286. 
lex  loci  considered,  and  cases  referred  to,  286,  287. 
husband  and  wife  should  join  in  the  articles,  288. 
so  should  the  trustee,  288. 
how  made  without  a  trustee,  289. 

what  constitutes  a  general  and  beneficial  power  in  the  wife,  289. 
trusts  in,  may  be  so  created  as  to  render  property  inalienable,  290. 
policy  of,  doubted,  290. 

should  be  made  by  parties  able  to  contract,  291. 
objection  of  infancy  cannot  be  made  by  trustee,  291. 
husband  bound  to  support  his  wife,  notwithstanding  the  settlement,  291. 
See  Marriage  Settlements.     Post-Nuptial  Agreements. 
ANTICIPATION, 

provided  against  in  marriage  articles,  283. 
provision  with  respect  to,  in  the  Revised  Statutes,  283,  284. 
APPOINTMENT.     See  Powers,  265. 
APPORTIONMENT 

of  rent,  how  and  when  made,  210,  211. 
of  commons,  when,  191. 
of  incumbrances,  301. 
ATTAINTED, 

of  treason,  &c.  cannot  inherit,  322. 
ATTESTATION, 

of  deed  when  required,  386,  387. 

of  wills,  and  the  clause  to  be  added,  485,  &c.     ^ee  Devise. 
ATTORNEY, 

deed  executed  by,  how  acknowledged,  393.     See  Powers  of  Attornet. 
ATTORNMENT, 

of  tenant  to  a  stranger,  void,  82. 
ARTICLES  OF  AGREEMENT, 

for  sale  of  land,  must  be  in  writing,  contain  the  consideration,  and  be  sub- 
scribed by  the  party  or  his  attorney,  375. 
will  be  enforced  in  equity,  375. 
should  contain  the  contract  truly,  375. 
need  not  be  under  seal,  376. 
authority  of  the  agent  may  be  by  parol,  37fl. 
may  be  written  with  a  lead  pencil,  380. 
ASSIGNMENT, 

of  a  mortgage,  good  by  parol,  113. 

assignee  takes  subject  to  all  the  equities  of  mortgagor,  113. 

assignee  of  a  mortgage,  a  purchaser,  122. 

for  benefit  of  creditors,  valid,  as  trusts,  236,  237. 


INDEX.  659 

ASSIGtNMENT— conimwei, 

how  defined,  and  operative  words  of,  439. 

must  be  in  writing  when  it  relates  to  lands,  439. 

what  may  be  assigned,  439,  440. 
AUNTS 

of  intestate,  when  to  inherit,  333. 
AWARD, 

when  an  extinguishment  of  cause  of  action,  304. 

B 

BANKS 

are  a  franchise,  200. 

rights  of,  200.     See  Franchise. 
BARGAIN  AND  SALE, 

still  used  as  a  deed,  423,  441.     See  Deed. 
BASE  OR  QUALIFIED  OR  CONDITIONAL  FEES,  51,  54. 

how  conditional,  may  become  absolute,  54. 
BASTARDS, 

how  defined,  when  cannot  inherit,  318. 

may  take  by  devise,  474. 
BEASTS, 

what  are  commonable  on  highways,  192. 
BOUNDARY 

of  land  on  a  stream  or  highway,  how  far  it  extends,  220,  221,  405,  405. 
BUILDING, 

60  as  to  overlook  adjoining  owner's  privacy,  remedy  for,  219. 

0 

CATTLE, 

when  allowed  to  depasture  the  highway,  192. 

horses,  cattle  and  sheep,  but  not  swine,  192. 
CESTUI  QUE  TRUST, 

meaning  of,  and  his  power,  237. 
CESTUI  QUE  USE, 

meaning  of,  and  his  power,  229.     See  Uses  and  Trusts. 
CESTUI  QUE  VIE, 

when  absent  seven  years,  presumed  to  be  dead,  99. 
CHARGE, 

upon  real  estate,  by  will,  343,  521,  522,  556.     See  Devise. 

the  residuary  clause  in  a  will  not  alone  sufficient  to  create  a  charge,  522,  523. 

an  incumbrance  in  the  hands  of  devisees,  343. 
CHARITIES, 

when  devises  to,  by  a  party  having  a  husband,  wife,  parent  or  child,  void, 
501. 
CHILDREN, 

posthumous,  provided  for,  171. 

when  to  inherit,  318,  327. 

who  are  included  in  a  devise,  512. 


660  INDEX. 

CITIZEN,  , 

every  natural  born,  entitled  to  inherit,  &c.  44.    See  Naturalization.  Alibn. 

Descent. 
difference  between,  and  a  denizen,  321. 

CODICIL,  ,       .^.      ,^, 

included  in  term  wills,  and  to  be  executed  with  the  same  solemmties,  491. 
it  need  not  be  annexed  to  the  will,  499.     ^ee  Devise. 
to  be  construed  as  part  of  the  will,  504, 
COLLECTOR'S  BONDS, 

a  hen  on  the  lands  of  the  collector  and  his  sureties,  154,  155,  535. 

COMPUTATION 

of  time,  by  Gregorian  style,  81. 
from  and  to  a  particular  day,  81. 
when  extlusive  and  when  inclusive.  81. 
CONDITION, 

estates  upon,  100  et  seq. 

meaning  of  the  term,  100. 

by  what  words  created,  101,  102,  520. 

may  be  express  or  implied,  100,  101. 

distinction  between  condition  and  Umitation,  102,  520. 

between  condition  and  covenant,  102, 
cannot  be  reserved  to  a  stranger,  103. 
when  void,  103. 

repugnant,  impossible,  and  illegal,  103,  431. 
against  alienation  of  the  estate,  when  void,  104. 
precedent,  and  subsequent,  by  what  words  created,  105,  520,  542. 
conditions  subsequent,  not  favored,  105. 
courts  lean  against  forfeitures,  106. 
performance,  and  what  will  excuse  it,  106. 

condition  in  lease  against  assigning,  when  good,  107.     See  Mortgages. 
conditional  hmitations,  170. 
CONFIRMATION, 

how  defined,  and  by  what  words  created,  437. 
COMMONS, 

nature  of  the  right,  190. 

common,  appendant,  and  appurtenant,  and  in  gross,  190. 
of  pasture,  and  of  estovers,  190,  191. 
of  turbary  and  piscary,  190,  191. 
grantee  of  common  in  gross,  may  alien  it,  191. 
in  public  highways,  192, 
extends  only  to  cattle,  horses  and  sheep,  192. 
how  extinguished,  193. 
how  revived,  193. 
remedy  for  disturbance,  193. 
when  apportioned,  191. 
CONSANGUINITY, 

lineal  and  collateral,  defined,  317. 
mode  of  computing  degrees,  317. 


INDEX.  661 

CONSIDERATION 

to  create  a  resulting  trust,  236. 

must  be  expressed  in  articles  of  agreement  for  the  sale  of  land. by  the 

statute  of  frauds,  375. 
of  two  kinds,  good  and  valuable,  379. 
definition  thereof,  379,  380. 
advisable  to  insert  it  in  the  deed,  though  not  indispensable  between  the 

parties,  379. 
necessary  for  a  deed  of  bargain  and  sale,  441. 

need  not  be  expressed  in  the  deed,  though  usual  and  advisable  to  do  so,  442. 
CONSTRUCTION 

of  deeds,  401  et  seq.     See  Deed. 
CONTINGENT  REMAINDER,  168.     See  Remainders. 
CONTRIBUTION, 

among  co-tenants  for  repairs,  188. 
CONVERSION 

of  land  into  money,  261. 
of  money  into  land,  261. 
CONVEYANCES.     See  Deed.     Lease.     Assignment  et  seq. 
should  be  acknowledged,  &c.,  122. 
can  transfer  no  more  than  grantor  has,  54. 
when  void,  360. 
different  kinds  of,  371,  372. 
CONVEYANCER, 

should  insert  in  lease  covenants  in  relation  to  the  destruction  of  buildings 

by  fire  &c.,  83,  210. 
so  as  to  fixtures,  83,  84,  89. 

to  manure,  84. 
his  duty  in  framing  trusts  in  marriage  settlements,  281. 
should  follow  the  language  of  the  statute,  281. 

provide  for  various  contingencies,  281,  282. 
how  far  back  title,  should  be  deduced,  314,  315. 
in  determining  value  of  estate  descended,  should  inquire  for  incumbrances, 

charges,  advancements  &c.,  337,  338. 
duty  as  to  searches,  339,  343. 
should  be  familiar  with  the  doctrine  of  adverse  possession,  and  reasons  for 

it,  360. 
his  duty,  when  grantor  is  deaf,  dumb  or  blind,  376,  377,  382.     See  Deed. 
as  to  subscribing  witnesses,  388. 
alterations,  erasures  &c.,  401. 
words  of  hmitation  in  deed,  408. 
duty  as  to  covenants,  412,  418,  419,  427,  430. 
correct  forms  should  be  followed,  423. 
what  covenants  are  usually  inserted,  429  et  seq. 
form  of  deeds  on  sale  of  intestate's  estate,  by  order  of  surrogate,  450. 
duty  in  investigating  a  title  under  sheriff's  sale,  458. 
in  drawing  a  will,  483,  484,  486,  487,  488,  490,  491. 


662  INDEX. 

CONVEYANCER— confonweti. 

with  reference  to  drawing  wills,  508,  511,  525. 
as  to  abstracts.     See  AbstbactSj  passim. 
CONVICTS, 

when  and  for  what  crime  excluded  from  inheriting,  322. 
COPARCENARY, 

in  what  cases  at  common  law,  177. 

does  not  exist  in  this  state,  177. 
CORPORATION, 

when  allowed  to  hold  land,  46. 

when  it  takes  a  fee,  46. 

by  what  words,  46. 

not  dissolved  ipso  facto  by  sale  of  its  property,  149. 

some  decree  of  court  necessary,  149. 

rehgious,  how  created,  240,  241. 

power  to  convey  land,  377. 

may  be  grantees,  when  their  charter  permits,  but  not  otherwise,  378. 

deed,  how  executed  by,  383,  384. 

how  proved  or  acknowledged,  393. 

how  permitted  to  alien  their  lands,  445,  446. 

when  permitted  to  hold  by  devise,  475,  476.     /Sfee  Devise. 
COUNTY  COURT, 

its  jurisdiction  on  sale  of  lands  by  married  women,  under  act  of  1860,  453. 

when  it  may  assign  dower,  75. 
COURT  OF  CHANCERY 

abolished,  and  supreme  court  takes  it  place,  248. 
COVENANTS, 

which  run  with  the  land,  205,  207,  415,  416. 

how  defined,  411. 

of  two  kifids,  express  and  implied,  411. 

implied,  how  far  abrogated  by  R.  S.  411,  412. 

usual  ones  inserted  in  deeds,  412. 

what  run  with  the  land  and  what  do  not,  412,  416. 

of  seisin,  broke  when  made,  412. 

measure  of  damages  for  breach  of  it,  413. 

against  incumbrances,  when  broke,  413. 

for  quiet  enjoyment,  413,  414,  415. 

goes  to  the  possession,  414,  415. 

rule  with  respect  to  covenants  running  with  the  land,  414. 

which  run  with  the  land,  416. 

list  of  them  stated  by  Cowen,  J.  416. 

such  covenants  relate  to  the  land,  416. 

for  further  assurance,  duty  of  parties  with  respect  to,  417. 

who  can  enforce  sucli,  418. 

in  leases,  usual  covenants,  426,  427,  428. 

effect  of  destruction  of  buildings  by  fire,  428. 

for  rebuilding  &c.,  run  with  the  land,  428. 

no  implied  covenant  that  landlord  should  repair,  427. 


INDEX.  663 

COVENANTS— c<m«mMe<f. 

with  respect  to  repairs,  should  be  inserted,  429. 

also  to  surrender  up  at  the  end  of  term,  430. 

to  pay  taxes  &c.,  quiet  enjoyment,  430. 

not  to  assign  or  underlet,  430,  431. 

when  in  restraint  of  alienation,  void,  431. 

quarter  sales  when  void,  431. 

right  of  re-entry  for  non-payment  of  rent,  431.  • 

to  stand  seised  to  uses,  obsolete,  440. 
COVERTURE, 

disability  of,  as  to  devising  land,  473.    See  Married  Women, 
CREDITOR, 

may  compel  executors,  and  administrators  to  apply  to  the  surrogate  for  or- 
der to  sell  land  to  pay  debts  of  the  deceased,  342,  343i 

his  right  to  redeem  land  sold  by  execution,  460. 

mode  of  such  redemption,  and  effect  of  deed,  460. 
CROSS  REMAINDERS, 

how  defined,  173. 

do  not  exist  now  by  that  name,  173. 
CURTESY, 

an  estate  for  life,  how  defined,  58. 

requsites  to  create  the  estate,  58. 

what  seisin  in  the  wife  necessary,  58. 

marriage,  a  legal  one  necessary,  58. 

persons  capable  of  enjoying  the  estate,  59. 

effect  of  the  laws  of  1848,  1849  and  1860,  59,  60. 

conflicting  decisions  on,  59,  60. 

may  be  in  a  rent  charge,  209. 

party  may  make  a  lease  for  his  own  life,  432. 

D 

DEATH 

of  cestui  que  vie,  when  presumed,  99. 

of  principal,  when  a  revocation  of  a  power  of  attorney,  270. 
DEBTOR, 

by  judgment,  how-long  entitled  to  redeem  his  lands,  sold  under  execution, 
458. 
DEBTS 

of  ancestor,  an  equitable  lien  on  his  realty,  339. 

personal  estate  the  primary  fund  to  pay  them,  339. 

heirs,  when  and  how  far  liable  for,  339. 
DEDICATION, 

meaning  of  the  term,  223. 

extends  to  streets,  highways,  public  squares,  burying  grounds,  223,  226. 

may  be  express  or  implied,  223. 

by  grant,  estoppel,  or  adverse  enjoyment,  223,  224. 

laying  out  lots  bounded  on  streets  or  alleys,  amounts  to,  224. 


664  INDEX. 

DEmCATlOliJ— continued. 

must  be  adopted  by  the  public,  by  user  or  otherwise,  to  be  effectual,  224, 
225. 

a  user  of  twenty  years  evidence  of  acceptance  and  of  a  grant,  225. 

applies  to  rivers,  as  public  highways,  225. 

need  not  be  by  deed  or  grant,  227. 

how  it  differs  from  prescription,  349. 
DEED, 

recitals  in,  estop  parties,  366,  367. 

general  recitals  cannot  control  plain  words,  366,  367.     ^See  Estoppel. 

how  defined,  and  the  different  kinds  at  common  law,  372. 

by  statute,  375. 

poll,  and  indented,  372. 

modern  practice  with  respect  to,  372. 

must  be  acknowledged  before  the  proper  officer,  373.     See  Ackowlbdq- 

MENT. 

can  convey  no  more  than  grantor  has,  374,  421,  422. 

devests  title  of  grantor  and  vests  it  in  grantee,  375. 

ten  requirements  essential  to  a  deed,  376. 
First:  parties  to  it,  must  be  natural  persons,  376. 

or  artificial,  as  corporations,  376. 

grantors  must  be  of  full  age,  376. 

of  sound  mind,  376. 

not  under  disability,  376. 

how  made  by  persons  born  deaf  and  dumb.  376. 
persons  blind,  377. 

not  by  idiots  or  lunatics,  377. 

definition  of  idiocy  and  lunacy,  373.     ^See  Idiot.    Lunatic. 
Second :  consideration,  not  indispensable  at  common  law,  378. 

advisable  to  have  one  and  to  express  it  in  deed,  378. 

•voluntary  deed,  when  void,  378. 

consideration  of  two  kinds,  good  and  valuable^  379. 

definition  of  them,  379,  380. 
Third :  writing  on  paper  or  parchment,  380. 

with  pen  and  ink,  380,  381. 
Fourth :  must  contain  proper  words,  legally  and  orderly  set  forth,  381. 

there  are  seven,  381,  382. 
Fifth :  reading,  if  it  be  desired,  382. 

if  party  blind  or  illiterate,  382. 
Sixth :  subscribed  and  sealed,  382. 

meaning  of  the  word  sealing,  382. 

must  be  an  impression  on  wax  or  wafer,  382. 

in  what  cases  an  impression  on  the  paper  alone  is  sufficient,  383. 

how  executed  by  corporation,  383. 
Seventh-:  must  be  delivered  by  party  or  his  attorney,  384. 

mode  of  delivery  explained,  384. 

need  not  be  delivered,  if  by  a  corporation,  384. 

should  be  delivered  to  grantee,  385. 


index:  665 

DEED — continued.  ' 

or  to  a  stranger  for  his  benefit,  385. 
how  delivered  as  an  escrow,  385,  386. 
when  such  deed  takes  effect,  385. 
form  of  delivery  as  an  escrow,  386. 
Eighth :  attestation  hy  witnesses,  386. 
good  between  the  parties  without,  386. 
when  witnesses  are  required,  386. 
must  have  been  present  at  the  execution,  387. 
where  no  subscribing  witness,  how  proved,  387. 
should  be  credible  persons,  388. 
Ninth :  should  be  acknowledged  before  a  proper  officer,  388. 
who  are  the  officers,  and  their  duties,  389,  390,  391. 
how  acknowledged  by  a  corporation,  393. 
by  an  attorney,  393. 
by  non-residents,  393. 
certificate  of  officer  requires  no  proof  of  its  genuineness,  395. 
when  subscribing  witness  is  dead,  how  proved,  395. 
Tenth :  must  be  recorded  in  the  county  where  the  lands  lie,  395,  548. 
effect  of  omitting  to  record  deed  or  mortgage,  396. 
when  certificate  of  county  clerk  to  acknowledgment  necessary,  396. 
must  be  recorded  in  the  proper  books,  397,  398. 
the  defeasance  also  in  same  book,  398. 

when  doubtful  as  to  which  book,  it  may  be  recorded  in  both,  399. 
taking  the  acknowledgment  is  a  ministerial  act,  399. 
how  avoided  by  matter  ex  post  facto,  399.  « 

when  by  erasure,  alteration,  &c.  400. 
alteration,  &c.  should  be  noted  by  the  witness  or  the  acknowledgmg 

officer,  401. 
rules  as  to  construction,  401,  402,  etseq. 
intention  to  be  sought,  402. 
ambiguity,  patent  and  latent,  explained,  402,  403. 
which  bears  more  than  one  construction  will  be  construed  most  strongly 

against  grantor,  403. 
when  equivocal,  grantee  to  elect,  403. 
construction  of  grant  is  matter  of  law,  404. 
when  void  for  uncertainty,  404.  * 

how  land  may  be  described,  405. 
with  respect  to  boundaries  on  rivers  and  highways — the  center  is  the  line, 

405,  406. 
practical  location,  effect  of,  406. 
how  far  acquiescence  in  an  erroneous  line  binds,  407. 
by  what  words  different  estates  are  created,  407. 
the  word  "  heirs"  not  indispensable  to  create  a  fee,  407,  408. 
as  to  words  necessary  to  create  an  estate  for  years  or  at  will,  or  an  estate  in 

common,  409,  410. 
usual  covenants  in  deeds,  415,  416.     See  Covenant. 
the  several  kinds  of  deeds,  419  et  seq. 


666  INDEX. 

DEED — continued. 

feoffmeut,  420. 
gift,  420. 
grant,  421. 

difference  between  feoffment  and  grant,  420^22. 
bargain  and  sale,  and  lease  and  release  are  grants,  423. 
conveyances  good  without  covenants,  423. 
bargain  and  sale,  tlie  usual  mode  of  assurance,  441. 
must  have  a  consideration,  and  void  without,  441. 
need  not  be  expressed,  but  advisable  to  have  it  so,  442. 
no  precise  words  necessary  to  raise  a  use,  442. 
rent  may  be  reserved  in  a  bargain  and  sale  in  fee,  442. 
such  rent  is  a  sufficient  consideration,  442. 
deed  to  lead  uses,  or  revoke  them,  444. 

on  sale  of  infant's  estates  should  recite  the  proceedings,  &c.,  449. 
by  sheriff,  at  the  expiration  of  fifteen  months  from  the  sale,  460. 
relates  back  to  the  time  of  sale,  460. 

of  the  party  by  whom  the  deed  should  be  made,  and  who  should  pay  the 
expei^ses,  558,  562. 
DEFEASANCE, 

defined,  and  how  it  differs  from  a  condition,  440. 
need  not  be  executed  at  the  same  time  as  the  deed,  440. 
if  it  relate  to  a  deed,  it  must  be  under  seal,  440. 
DEFEASIBLE  ESTATES 

described,  54. 
DELIVERY 

of  a  deed,  385,  386.     ^ee  Deed. 
DESCENT, 

title  by,  defined,  316. 

who  capable  of  taking  by,  317,  318. 

and  who  not,  318. 

not  essential  that  the  heir  should  be  born  during  lifetime  of  the  parents,  318. 
*/Sfee  Alien.    Bastard.    Illegitimates.     Heirs.    Children,  posthumous. 

persons  convicted  of  felony,  when  excluded,  322. 

law  of  descent  before  1830,  323,  324. 

possessio  fratris,  rule  with  respect  to,  324,  325. 

who  has  such  an  estate  as  to  constitute  a  stock  or  stirps  of  descent,  325. 

;?rs<  rule  of  descent,  326,  327. 

persons  embraced  in  the  rule,  326. 

alterations  from  the  former  rule,  326. 

not  necessary  that  the  ancestor  should  have  been  the  person  last  seised,  326. 

rule  at  common  law  excluded  parents,  327. 

rule  changed  so  as  to  include  them,  327. 

when  immediate  descent  to  children  is  suspended,  327,  328. 

effect  of  act  of  1860,  see  note,  328. 

second  rule  of  descent,  328,  329. 
the  like  at  common  law,  328. 


INDEX.  §$7 

DESCENT— continued. 

third  rule,  in  case  of  no  descendants,  it  goes  to  parents — first,  to  the  father; 

second,  to  the  mother,  330,  331. 
fourth  rule,  when  it  goes  to  collaterals,  332. 
old  rule  on  the  same  subject,  332. 
reason  of  the  old  rule,  332. 
how  modified  by  the  revised  statuteSj  332,  333. 
descendants  take  per  capita  when  in  equal  degree  of  consanguinity  to  the 
intestate,  333. 

per  stirpes,  when  in  different  degrees,  333. 
fifth  rule,  in  default  of  lineal  descendants,  parents,  brothers  and  sisters,  who 
to  take,  333. 
brothers  and  sisters  of  the  father  of  intestate,  333. 
if  any  be  dead,  to  their  descendants,  333. 
sixth  rule,  if  inheritance  came  to  intestate  on  the  part  of  his  father,  who 
preferred,  334. 

if  on  the  part  of  the  mother,  334. 
how  this  was  at  common  law,  334. 
the  sixth  and  seventh  canons  at  common  law  abrogated  by  the  revised 

statutes,  334. 
provision  as  to  illegitimates,  318,  335. 

in  all  other  cases,  descent  according  to  the  common  law,  335,  336. 
as  to  dignity  of  blood  at  common  law,  336. 

rules  of  descent  apply  to  estates  in  remainder  and  reversion,  336. 
doctrine  of  advancement  considered,  338. 

liability  of  heirs  and  devisees  for  debts  of  ancestor  and  devisor,  339. 
DETERMINABLE  FEES, 

how  become  absolute,  54. 
DENIZEN, 

how  defined,  321,  note. 
not  known  in  our  law,  321. 
DEVISE, 

nature  of  it  defined,  470. 

is  governed  by  the  lex  rei  sitae,  471. 

a  will  of  personal  property,  by  the  lex  domicilii,  472.  , 

parties  to  a  devisee ;  all  persons  except  idiots,  lunatics,  married  women  and 

infants,  472.     See  Idiot.     Lunatic.    Married  Women.    Infant. 
all  nattiral  persons  may  take  by  devise,  474. 
posthumous  children  may  take,  474.  ' 

married  women  and  illegitimates,  474. 
corporations,  can  only  take  when  authorized  by  their  charter,  or  by  special 

laws,  475,  476. 
policy  of  the  laws,  with  respect  to,  476, 
to  aUens,  how  far  valid,  477,  478. 
real  estate,  the  proper  subject  of,  478. 
after-acquired  lands,  pass  by,  478,  479. 
but  not  at  common  law,  478,  479. 
trust  estates,  not  devisable.  479,  480. 


668  INDEX. 

DEVISE — continued, 

equitable  freeholds  may  be  devised,  480. 

so  also,  a  possibility  coupled  with  an  interest,  480. 

estates  held  adversely  may  be  devised,  480. 

but  not  estates  held  in  joint  tenancy,  480. 

mortgagor,  before  foreclosure,  may  devise,  481. 

rent  charge  is  devisable,  481. 

formalities  necessary  to  a  valid  devise^  481. 

must  be  made  by  parties  of  full  age,  and  not  under  disability,  481. 

must  be  subscribed  by  testator,  at  end  of  the  will,  482,  484. 

will  must  be  in  writing,  written  with  pen  and  ink,  483. 

not  material  in  what  language,  483. 

may  subscribe  by  his  mark,  484. 

must  be  subscribed  in  the  presence  of  ttvo  witnesses,  485. 

must  be  declared  by  testator  to  be  his  will,  486. 

attestation  clause,  not  indispensable,  but  it  is  advisable  to  do  it,  487. 

each  witness  must  sign  his  name  at  the  end  of  the  will,  488. 

and  subjoin  his  place  of  abode,  488. 

must  sign  at  the  request  of  the  testator,  488,  489,  490. 

attestation  clause  should  be  read  over  to  the  witnesses,  491. 

if  testator  is  blind  or  illiterate,  the  will  should  be  read  over  in  the  presence 

of  the  witnesses,  491. 
codicils  are  executed  with -the  same  formalities,  491. 
revocation  and  republication  of  wills,  492. 
revocation  by  subsequent  will,  expressly  so  declaring,  492. 
implied,  by  marriage  and  birth  of  a  child,  493. 
effect  of  marriage  by  a  feme  soU  on  her  will,  494. 
by  sale  of  the  lands  devised,  495,  496. 
to  post  testamentary  children,  497. 
effect  of  a  partition,  or  a  conveyance  of  land  upon,  498. 
how  far  and  when  it  lapses,  and  when  not,  498. 
revocation  of  a  will,  not  to  revive  a  former  one,  498. 
when  devises  are  void,  500  et  seq. 
to  corporations  not  authorized  to  take,  500,  501. 
•   to  charities,  by  a  party  having  a  husband,  wife,  parent  or  child,  qualified, 
501. 
object  of  the  law,  501. 
to  an  alien,  when  void,  502. 
when  void  for  uncertainty,  502,  503. 
general  maxims  of  construction  of  wills,  504,  505. 
will  and  codicil  to  be  construed  together,  504. 
how  words  are  to  be  understood,  504. 
construction  with  reference  to  the  estate,  506,  507. 
when  some  devises  good  and  some  bad,  effect  of,  508. 
as  to  ihe  description  of  the  property,  509,  510. 
effect  of  the  word  estate  in,  510. 
as  to  description  of  devisee,  511,  512. 
executory  devises,  513,  523. 


INDEX  669 

DEVISE — continued. 

when  void  for  uncertainty,  514,  515. 

when  a  blank  is  left  for  the  legatee's  name,  it  cannot  be  supplied  by  parol, 
516. 

examples  of  void  legacies,  514—519. 

by  what  words  particular  estates  are  created,  519. 

distinctions  between  a  wiU  and  a  deed,  520. 

what  words  create  a  condition,  520. 

distinction  between  condition  and  limitation,  520,  521. 

mode  of  charging  real  estate  by  will,  521. 

charge  may  be  express  or  implied,  522,  523. 

residuary  clause  not  enough  alone,  522. 

executory  devises,  how  defined,  523. 

distinction  between  them  and  remainders,  524. 

effect  on  suspending  power  of  alienation,  525. 

object  of  residuary  clause  in  will,  526. 

will  should  be  proved  as  a  will  of  land,  542. 

and  be  recorded,  549. 
DEVISEE, 

when  liable  for  debts  of  testator,  339. 

may  oppose  sale  of  real  estate,  341. 

allowance  of  claims  against  the  estate,  341. 

who  may  be  devisee.     See  Devise, 
DIGNITY 

of  blood,  rules  with  respect  to,  at  common  law,  336. 
DISABILITY, 

what  sufficient  to  prevent  the  statute  of  Hmitations  from  commencing  to  run, 
358,  359.     See  Insane.    Infants.    Married  Women.    Imprisoned. 
DISCONTINUANCE, 

how  defined,  298, 
DIVORCE, 

its  effect  on  dower,  65,  66,  70. 

as  to  decree  of  nullity,  66. 

a  mensa  et  ihoro,  effect  of,  66. 
DOMIOIL  , 

of  origin,  retained  till  another  is  acquired,  472.  * 

the  change  defeats  an  intention,  472. 

a  temporary  change,  effect  of,  472. 
DOWER, 

definition  of  the  estate,  61. 

what  circumstances  requisite  to  the  estate,  62. 

marriage,  seisin  of  the  husband  and  his  death,  62. 

not  of  an  instantaneous  seisin,  62. 

as  to  mines,  how  dowable,  62,  63, 

in  general  not  dowable  of  an  estate  in  dower,  63, 

two  widows  not  dowable  of  the  same  estate  at  the  same  time,  63. 

wife  of  mortgagor,  how  far  dowable,  63,  64. 

object  of  wife  joining  in  deed  of  her  husband,  64. 


670  INDEX. 

DOWER-— continued. 

if  wife  an  infant,  not  barred  by  her  deed,  64. 

in  exchange  of  lands,  how  endowed,  64,  65. 

exchange,  how  defined,  65. 
■  marrriage,  must  be  legal,  65. 

effect  of  dower  on  the  estate,  65, 66. 

may  be  barred  by  a  jointure,  66. 

meaning  of  the  terms,  66,  67. 

mode  of  assenting  to  it  by  the  wife,  67. 

barred  by  a  testamentary  provision,  68. 

by  what  words  effected,  68. 

when  the  wife  put  to  her  election,  69. 

of  what  seisin  of  the  husband  dower  is  predicable,  69 

when  forfeited  by  divorce  or  elopement,  70. 

effect  of  adultery  on  jointure,  71. 

not  barred  by  alienation  of  the  husband,  71,  72. 

unless  the  wife  joins  in  the  deed,  72. 

how  recovered  when  husband  did  not  die  seised,  72 

favored  in  law,  72. 

rule  in  equity,  72. 

rule  where  permanent  improvements  have  been  put  on  by  the  heir,  73.    • 

rights  of  widow,  on  death  of  her  husband,  as  to  Wrrying  in  the  mansion 
house,  73. 

her  right  before  assignment  not  transferable,  73. 

who  can  assign  dower,  73. 

must  be  demanded  within  20  years,  74. 

mode  of  assigning  by  metes  and  bounds,  74. 

when  remedy  to  recover  dower  is  only  in  equity,  74. 

may  be  set  off  by  snrrogate,  county  court  or  supreme  court,  on  petition,  75i 

when  damages  are  to  be  allowed,  75. 

rule  by  which  damages  are  assessed,  75. 

incidents  to  the  estate  in  dower,  76. 

may  make  leases  and  have  estovers,  76. 

may  be  granted  in  a  rent  charge,  209. 
DURABLE  LEASES, 

create  a  rent  charge,  207,  425.    See  Rent,  Leabk. 

E 

EJECT^CENT, 

cannot  be  brought  on  a  mortgage,  before  foreclosure,  142. 

former  action  to  recover  possession  of  land,  352. 

superseded  by  the  code  of  procedure,  352. 

party  having  legal  title,  may  bring  an  action,  352. 

but  one  form  of  remedy  provided  by  the  code,  352.     See  Adveese  Pob- 

SK8S10N. 

ELECTION, 

title  by,  reason  and  ground  of  the  rule,  363. 

the  party  claiming  under  a  wiU,  must  give  effect  to  it,  363. 


INDEX.  67i 

ELOPEMENT, 

its  effect  on  the  right  to  dower,  70. 

rule  with  respect  to,  at  common  law,  70. 
EMBLEMENTS, 

what  understood  to  be,  77. 

extend  only  to  annual  growth  &c.  77. 

do  not  extend  to  grass,  77. 

founded  on  the  clearest  equity,  77. 

applies  to  roots,  &c.  77. 

tenant  for  years  not  entitled  to,  83. 

unless  stipulated  for  in  the  lease,  83. 
EMINENT  DOMAIN, 

right  of,  defined,  464. 

application  of  the  right,  to  roads  and  bridges,  465,  466. 
to  corporations,  147,  467. 

Hmitation  of  the  right,  467,  468. 

title  of  lands  in  fee,  though  granted  to  a  corporation,  469. 

rail  road  company  may  sell  their  lands  in  fee,  469. 

proceedings  on  taking  land  for  a  rail  road  company,  against  the  will  of  the 
owner,  470.     See  Appendix. 
ENTRY, 

what  sufficient  to  avoid  the  statute  of  limitations,  352,  358. 

right  of,  of  a  reversioner,  or  remainderman,  not  affected  by  the  statute,  360. 

what  constitutes  an  entry,  352. 
EQUITY, 

when  it  will  aid  a  defective  execution  of  powers,  266,  267. 
EQUITABLE  CONVERSION, 

in  what  cases  it  takes  place,  and  what  it  is,  261. 
EQUITABLE  ESTATES,  Part  II,  page  226  et  seq. 

subject  divided,  226. 
EQUITY  OF  REDEMPTION, 

hke  a  trust  estate,  143,  144.     See  Moetgagb.    Foeholostjee. 

is  subject  to  curtesy  of  husband,  144. 
to  dower  of  wife,  when,  144. 

subsequent  incumbrancers  may  redeem,  144. 

may  be  sold  by  order  of  surrogate  to  pay  debts,  144,  145. 

when  premises  incapable  of  division,  145. 

to  be  sold  in  inverse  order  of  alienation,  146. 

mode  of  computing  interest  on  the  security,  147. 

interest  upon  interest  not  allowed,  147. 
ESCHEAT, 

meaning  of,  at  common  law,  344. 

as  modified  by  revised  statutes,  344,  345. 

liable  to  previous  trusts.  345. 
ESCROW, 

meaning  of  the  term,  385. 

must  be  delivered  to  a  stranger,  386. 


672  INDEX. 

ESCROW— ^onfmwed 

and  not  to  the  party  himself,  386. 

apt  words  must  be  used,  386.     See  Dbko. 
ESTATE,  REAL, 

definition  of,  47,  50,  510. 

technical  meaning  of  the  term,  47. 

quality  and  quantity  of,  how  defined,  48. 

of  freehold  and  less  than  freehold,  49. 
of  inheritance,  absolute,  49. 
of  inheritance,  defeasible,  52. 
not  of  inheritance,  65,  56. 

upon  condition,  100. 

may  be  charged  with  debts  and  legacies  in. a  will,  343. 

effect  of  the  word  in  a  devise^  510. 
ESTATES  PUR  AUTER  VIE, 

devisable  by  will,  362. 

when  not  devised,  go  to  executors  or  administrators,  362. 
ESTATES  IN  EXPECTANCY,  156  et  seq.     See  REMAUfDEB.     Revebsion. 
ESTATE  FOR  LIFE, 

different  kinds  of,  56  et  seq. 

for  one's  own  life,  the  most  valuable,  56. 

may  be  aliened,  57. 

for  life  of  another,  an  estate  pur  auter  vie,  57. 

to  whom  it  goes  on  death  of  the  tenant,  57. 

when  devisable,  and  rights  of  devisee,  58. 

by  the  curtesy,  58.     See  Ctjbtesy. 

in  dower,  61.     See  Do  web. 

incidents  of,  76  et  seq. 

subject  to  merger,  76. 

entitled  to  emblements,  77. 

must  keep  down  the  interest  of  debts,  77. 

tenant  for  life  entitled  to  deeds,  78. 

cannot  dig  gravel,  nor  open  a  mine,  78, 

cannot  cut  timber  or  commit  waste,  78. 

maj  l36  limited  as  a  remainder,  on  a  term  of  years,  164. 
ESTATES  LESS  THAN  FREEHOLD, 

what  they  are,  80. 
ESTATE  TAIL, 

how  defined,  52,  53, 

when  turned  into  estates  in  fee,  53,  54,  336,  337. 

rule  of  descents  under,  336,  337. 
ESTATES  AT  WILL, 

how  defined,  93. 

how  created,  94, 

cannot  be  assigned,  94. 

how  terminated,  94,  95. 

when  entitled  to  notice  to  quit,  96. 

by  what  words  the  estate  is  created,  409. 


INDEX.  673 

ESTATE  FOR  YEARS, 
how  defined,  80. 

must  have  a  certain  beginning  and  end,  80. 
created  by  act  of  the  parties,  80. 
usually  by  a  written  lease,  80. 
but  may  be  by  parol,  80. 
is  denominated  a  chattel  interest,  81. 
the  term  seisin  not  applicable  to,  81. 
estate  of  freehold  cannot  be  created  out  of,  82. 
incidents  of,  82.     See  Estovees. 
liable  for  waste,  82. 

when  tenant  liable,  if  building  destroyed  by  fire,  83,  428. 
may  be  surrendered,  91. 
effect  of  the  surrender,  91. 
subject  of  merger,  92. 
meaning  of  merger,  92.     See  Mekgkk. 
requisites  of  merger,  92,  93,  296,  297. 
a  contingent  remainder  may  be  created  in  a  term  of  years,  164.    ike  Rb- 

MAINDEB. 

ijo  implied  covenant  for  lessor  to  repair,  427. 

nor  that  premises  are  tenantable,  427. 

except  as  to  furnished  lodgings,  427. 

usual  covenants  in  leases,  427,  428.     See  Appendix  of  Foems. 

statute  of  1860,  as  to  destruction  of  the  premises,  428. 
ESTOPPEL, 

title  by,  how  defined,  364. 

three  kinds,  by  record,  writing,  in  pais,  364-368. 

what  necessary  to  make  a  record  conclusive,  364. 

reversal  of  the  judgment  destroys  it,  365. 

by  matter  in  writing,  1,  under  wills,  365. 
2,  under  deeds,  366. 

not  estopped  by  the  admission  of  a  conclusion  in  law,  366. 

general  recital  not  enough  to  control  the  plain  words  of  deed,  366, 

its  effect  on  claim  for  dower,  367. 

as  between  landlord  and  tenant,  368. 

3,  by  matter  in  pais,  368. 

object  of  the  rule  to  prevent  injustice,  368. 

must,  by  reciprocal,  369. 

certain  to  every  intent,  369. 
ESTOVERS, 

an  incident  of  life  estate,  defined,  76. 

no  right  to  cut  down  ornamental  trees,  76. 

for  fuel,  to  take  dry  wood,  76. 

tenant  must  do  as  little  damage  as  possible,  76. 

tenant  for  years  entitled  to,  82. 
EXECUTORS, 

when  they  have  a  power  to  sell  land  by  implication,  261. 

Will.— 43 


674  INDEX. 

EXECUTORS  AND  ADMINISTRATORS, 

take  the  personal  estate  on  death  of  the  owner,  316. 

what  goes  to  executors,  rather  than  heirs,  317.     See  FiXTXTiutfl. 
■  when  to  apply  to  surrogate  for  lease  to  sell  land,  340. 
estates  pur  auter  vie  go  to,  362. 
EXECUTORY  CONTRACT, 

when  extinguished,  304. 

not  unless  a  higher  security  is  taken,  305. 

payment  extinguishes  it,  305. 

performance  of  a  contract  extinguishes  it,  305. 

parties  may,  by  consent,  deviate  from  it,  306. 
EXECUTORY  DEVISES, 

could  not  be  defeated  by  destruction  of  the  particular  estate,  172. 

how  defined,  and  how  they  differed  from  a  remainder,  174. 

how  limited  by  law,  513. 
EXECUTION, 

may  be  issued,  after  the  docketing,  at  any  time  within  five  years,  455. 

form  of,  and  its  requirements,  455. 

returnable  within  sixty  days,  455. 

sheriff's  sale  by  virtue  of,  and  title  by,  454,  455. 
EXCHANGE, 

its  effect  on  estates  in  dower,  64,  65. 

defined,  not  used  in  this  state,  433,  434. 

requisites  to  a  valid  exchange,  434. 

at  common  law,  implies  a  warranty,  434. 

how  made  in  modern  practice,  435. 
EXTINGUISHMENT, 

of  rent,  when  and  when  not,  218. 

when  by  judgment  or  bond,  218,  305. 

meaning  of  the  term,  297,  300. 

union  of  legal  and  equitable  estates,  300,  301,  302. 

exemplified  in  mortgages,  302. 

how  qualified  in  equity,  302,  303. 

by  giving  a  higher  security  for  a  debt,  304,  305. 
EVICTION, 

when  a  bar  to  rent,  209. 

what  constitutes  such  eviction,  209. 

a  physical  one  not  necessary,  209. 

an  injurious  disturbance  of  the  beneficial  enjoyment  by  the  tenant,  consti- 
tutes, 209. 

F 

FAMILY  ARRANGEMENTS.    See  Marriage  Settlements,  272  d  sej. 
FATHER, 

when  to  inherit  from  a  child,  331,  332.    See  Descent. 


IXDEX.  675 

FEES, 

determinable,  may  become  absolute,  55. 

conditional,  when  abolished,  and  by  what  succeeded,  55. 

what  still  exist,  54. 
FEE  SIMPLE, 

estate  o^  defined.  49,  50. 

words  necessary  to  create  it  by  the  common  law,  50. 

incidents  of  the  estate,  51. 
FEE  TAIL, 

how  defined,  52,  53,  167. 

when  turned  into  estates  in  fee,  53,  54,  167. 
FEME  COVERT.     See  Married  Woman. 
FENCES, 

are  in  general  fixtures,  not  to  be  removed,  84,  85. 
FENCma  MATERIALS, 

temporarily  detached,  are  still  treated  as  fixtures,  85. 

unless  there  is  an  agreement  to  the  contrary,  85. 
FEOFFMENT, 

former  mode  of  conveyance  abolished  in  New  York,  and  grants  substi- 
tuted, 373. 

operation  of  a  feoffment,  420.     See  Deed. 
FEUDAL  SYSTEM, 

origin  of  our  tenures,  41. 

its  oppressive  features  never  adopted  here,  43. 
FINES  AND  RECOVERIES, 

abolished,  373. 
FIRE, 

when  destruction  of  a  building  by  fire  will  absolve  the  tenant,  83,  210. 

usual  and  safe  course  to  guard  against  it,  by  stipulations  in  the  lease,  83,  210. 
See  form  of  Leases  with  the  fire  clause,  in  the  Appendix.    Landlord  and 
Tenant. 
FIXTURES, 

rule  as  between  landlord  and  tenant,  83. 

when  affixed  for  manufacturing  purposes,  84. 

fences  and  trees  are  real  estate,  84. 

right  to  remove  fixtures  may  depend  on  covenant,  84. 

nursery  men  may  reniove  shrubs,  &c.  84. 

the  manure  made  on  the  farm  belongs  to  the  farm,  84. 

it  cannot  be  sold  off  by  tenant,  85. 

different  kind  of  fixtures  considered,  85. 

hop  poles  are  fixtures  and  belong  to  the  land,  85. 
,  continue  so,  though  piled  up  in  the  yard,  85. 

right  between  heirs  and  executors,  86. 

as  between  landlord  and  tenant,  86. 

tenant  should  make  the  removal  during  his  term,  86. 

as  regulated  by  the  revised  statutes,  86. 
stoves  put  up  for  use,  87. 

annexation  by  tenant  for  his  own  convenience,  87. 


676  INDEX. 

TIXTTJRES— continued. 

as  between  mortgagor  and  mortgagee,  88. 
vendor  and  vendee,  88,  89. 

physical  annexation  not  necessary,  89. 

charter  and  deeds,  heir  looms,  &c.  89. 

as  between  executors  of  tenant  for  life  and  the  remainderman,  90. 

remarks  on,  in  note,  621. 
FOOT-PATH.     See  \y AYS.     IMetseq. 
FORECLOSURE, 

of  mortgages  in  equity,  141. 

strict  foreclosure,  and  decree  of  sale,  141. 

no  bar  to  action  on  the  bond,  141. 

former  practice  referred  to,  142. 

present  practice  indicated,  142. 

all  persons  having  a  lien  on  the  premises  to  be  made  parties,  142. 

if  creditor  proceed  in  equity,  he  cannot  proceed  at  law  without  leave,  142. 

if  he  proceeds  at  law  first,  he  cannot  sell  mortgaged  premises  on  the  exe- 
cution, 142. 

ejectment  cannot  be  brought  on  a  mortgage,  142. 

if  the  deed  be  absolute  on  its  face,  and  shown  by  parol  to  be  meant  as  a 
security  for  a  debt,  only  remedy  is  in  equity,  143. 

if  a  third  person  not  a  party  to  the  mortgage  be  liable,  he  xa&j  be  joined  in 
the  action,  143. 

if  mortgage  given  to  perform  covenants,  remedy  is  in  equity,  143. 

if  no  power  of  sale  in  the  mortgage,  the  remedy  is  in  equity  only,  143. 

a  subsequent  mortgagee  may  file  bill  to  redeem,  143. 

equity  of  redemption,  is  like  a  trust  estate,  143,  144. 

the  legal  seisin  is  in  mortgagor,  143.  , 

owner  of  the  equity  of  redemption  a  necessary  party,  144. 

equity  of  redemption  is  subject  to  curtesy,  144. 
also  to  dower,  144. 

a  subsequent  incumbrancer  by  judgment  or  other  lien,  may  file  a  bill  to 
redeem,  144. 

the  purchaser  under  a  junior  lien  takes  it  subject  to  prior  incumbrances,  145. 

mortgage  payable  by  installments,  should  be  foreclosed  in  equity,  145. 

so  also  when  premises  incapable  of  division,  145. 

when  nothing  is  due  but  the  interest,  145. 

decree  will  stand  for  future  payments,  145. 

sometimes  the  land  is  the  primary  fund,  146. 

equity  will  in  such  cases  so  enforce  it,  146. 

order  in  which  successive  mortgages  are  to  be  paid,  146. 

in  the  inverse  order  of  their  alienation,  146. 

when  parts  of  premises  have  been  sold  at  different  times,  same  rule  applies, 
146. 

same  as  to  general  liens,  146. 

mode  of  computing  interest,  147. 

compound  interest  not  recoverable,  147. 


INDEX.  677 

FORECLOSURE— cojifi/med 

agreement  to  pay  interest  upon  interest  not  usurious,  but  will  not  be  en- 
forced, 1 17. 

such  interest,  if  voluntarily  paid,  cannot  be  recovered  back,  147. 

otherwise  if  paid  by  mistake,  147.  v 

a  rail  road  and  its  franchises  may  be  mortgaged,  147. 

mode  of  doing  so,  148. 

mortgage  must  be  proved,  and  recorded  in  all  the  counties  through  which 
it  passes,  148. 

nature  of  the  franchise,  148. 

road  may  be  mortgaged  without  the  franchise,  148. 

sale  on  foreclosure,  must  be  in  the  county  where  the  lands  ,are,  454.     See 
Mortgage. 
FORFEITURE, 

courts  lean  against,  104. 

how  alienation  of  tenant  will  work  it  out,  104. 

it  must  be  voluntary,  104. 

when  once  waived  cannot  be  again  claimed,  104. 

mode  of  taking  advantage  of,  108. 

consequences  of  a  recovery,  109. 

as  a  source  of  title,  how  it  arises,  346. 

for  what  crimes  and  how  enforced,  346. 
FRACTIONAL  PARTS 

of  a  year,  how  computed,  81. 

a  whole  year  365  days,  81. 

half  year,  182  days,  81. 

a  quarter  year,  91  days,  81. 

the   added  day  of  leap  year,   and  the  day  preceding,  reckoned  as  one 
day,  81. 
FRANCHISE, 

meaning  of  the  term,  148,  200,  202. 

may  be  mortgaged  by  rail  road  companies,  148. 

with  or  without  the  track  of  road,  148. 

purchaser  may  organize  a  new  company,  148. 

banking  institutions,  200. 

right  to  erect  a  wharf  or  a  dam,  200. 

grant  of,  construed  strictly,  201. 

legislature  not  restricted  by  one  grant  from  making  another  similar  one, 
201, 

cases  on  the  subject,  201,  202. 
FRAUDS, 

relief  granted  in  case  of,  by  supreme  court,  248. 

limitations  of  the  action,  six  years,  248. 
FRAUDS,  STATUTE  OF, 

requires  a  lease,  for  a  longer  term  than  one  year,  to  be  in  writing,  80, 
81,  426. 

oral  lease,  though  void  for  more  than  a  year,  is  good  for  one  year,  426. 


678  INDEX. 

PRAUDS,  STATUTE  OF— continued. 

requires  a  contract  for  the  sale  of  land  to  be  in  writing,  and  subscribed,  &c. 
375,  376. 

the  authority  of  the  agent  not  required*tobein  writing,  376. 
FREEHOLD  ESTATE, 

of  inheritance,  49. 

when  absolute,  and  when  conditional,  49. 

subject  to  dower  and  curtesy,  51. 

hable  to  be  charged  with  the  debts  of  the  owner,  51. 

not  of  inheritance,  what,  52. 

how  created,  55. 

different  kinds  of,  55,  58. 
FUTURE  ESTATE,  157.    See  Remaixdee.    Reversion,    Executory  Devises. 

GARDENERS  AND  NURSERYMEN, 

may  remove  trees  «&c.  84. 

when  it  is  in  the  course  of  their  business,  84. 

such  things  as  plants,  shrubs  &c.,  are  not  treated  as  fixtures,  84. 

the  right  to  remove  them  usually  provided  for  in  the  lease,  84. 
GRADATION  OP  ESTATES, 

stated  in  order,  310,  311. 
GRANDCHILDREN, 

their  rights  under  the  statute  of  descents,  329. 
GRANDPARENTS, 

when  they  inherit,  329,  330,  332. 
GRANT, 

of  right  of  way  over  grantor's  land,  194. 

adopted  as  the  mode  of  assurance  in  this  state,  373. 

applies  to  corporeal  as  well  as  incorporeal  hereditaments,  873.     See  Deed. 

is  conclusive  against  grantor,  374. 

can  convey  no  more  than  grantor  has,  374. 

recitals  in,  estop  parties  and  privies,  366. 

operation  of  a  grant  at  common  law,  421,  422.     See  Deed. 
GRASS, 

produced  annually,  without  labor  of  man,  not  an  emblement,  77. 
GROWING  CROPS, 

go  to  the  heir,  rather  than  the  executor,  89,  90. 
GUARDIAN,  special,  deed  of,  by  order  of  the  court,  448. 

sales  by,  how  conducted,  448.     See  Infant. 

H 

HALF-BLOOD, 

relatives  of,  inherit  equally  with  those  of  the  whole  blood,  334. 
HEIRS, 

necessary  word  to  pass  a  fee  at  common  law,  50. 

liot  indispensable  now,  50,  407,  408. 


INDEX  gyg 

HEIRS — continued, 

the  persons  on  whom  the  law  casts  the  estate,  on  the  death  of  the  ancestor 
intestate,  316.  ' 

what  passes  to  heirs  with  the  land,  316,  317. 
liability  of,  for  debts  of  ancestor,  339, 

may  oppose  the  allowance  of  claims  against  the  estate  of  their  ancestor, 
341,  342. 
HEIR  LOOMS, 

what  they  are,  89,  316. 

to  whom  they  go  on  decease  of  owner,  316. 
HEREDITAMENT, 

meaning  of  the  term,  47. 

diflferent  kinds  of,  47. 

incorporeal  discussed,  189. 

different  kinds  of,  189. 
HIGHWAYS, 

public  and  private,  197. 

how  opened  and  maintained,  197. 

when  may  be  depastured,  192. 

and  by  what  animals,  192. 

width  of  highways,  197,  198. 

the  fee  of,  in  the  contiguous  owners,  221 
HOP  POLES, 

belong  to  the  farm  as  fixtures,  85.  ;• 

they  continue  so,  though  piled  up  in  the  yard  85 
HORSE-PATH.     See  Ways,  m  et  sea. 
HOTCHPOT, 

doctrine  of,  applied  to  the  law  of  descent,  338. 

borrowed  from  statute  of  distributions,  338. 

first  adopted  in  1830,  338. 
HOUSE, 

owned  by  the  owner  of  the  fee,  50. 
HUSBAND  AND  WIFE, 

cannot  convey  to  each  other,  181,  265. 

in  what  manner  it  is  done  circuitously,  181,  265. 

nature  of  the  tenancy  on  a  deed  to  them,  180,  182. 

survivor  takes,  182.     See  Marriage  Settlement. 

husband's  right  to  chattels  personal  of  wife,  at  common  law,  272. 

his  right  to  her  choses  in  action,  and  chattels  real,  272. 

rights  under  act  of  1860,  327,  328  and  note. 

in  what  cases  the  wife  may  convey  her  land  without  joining  her  husband. 
391. 
HYDRAULIC  WORKS, 

rights  of  the  proprietor  of,  to  the  flowing  water,  221» 
occupation  by  one  does  not  exclude  others,  221. 


680  INDEX. 


IDIOT, 

defined  as  a  total  want  of  understanding  from  nativity,  377. 

such  persons  cannot  make  a  deed,  377. 

may  be  grantee,  in  a  grant,  377. 

how  their  lands  may  be  sold,  448,  449. 

unable  to  devise  lands,  472. 

may  take  by  devise,  474. 
ILLEGITIMATES, 

when  cannot  inherit,  318,  335. 

when  they  can  from  the  mother,  318,  335. 

rule  under  act  of  1855,  318,  335. 

may  take  by  devise,  474. 
IMPRISONED, 

rights  of,  under  statute  of  limitations,  358,  359. 

for  life,  deemed  civilly  dead,  359. 

for  debt,  not  within  the  exception,  359. 
IMPRISONMENT  FOR  LIFE, 

a  civil  death,  359. 
INDIANS, 

their  right  to  hold  land  regulated,  44,  45. 
INCUMBRANCES, 

search  for,  necessary,  527. 

against  what  parties,  528. 

nature  of,  considered,  151,  152,  529. 

judgments,  how  made,  and  from  what  time  a  lien,  152,  529. 

bow  long  the  lien  continues,  153,  154,  529. 

by  what  courts  rendered,  152,  529,  530. 

how  discharged  of  record,  534, 

judgment  for  future  advances,  how  far  a  lien  and  incumbrance,  534,  535. 

town  collector's  bond,  when  a  lien,  535,  536. 

taxes  when  a  lien,  536. 

bow  discharged,  537. 

by  mortgage,  how  removed,  538.     See  Mortgage. 

by  whom  discharge  to  be  given,  538.     See  Abstracts. 
INFANT, 

rights  of,  under  statute  of  hmitations,  358,  359. 

feme  covert,  cannot  make  a  deed,  392. 

what  deeds  executed  by,  void,  and  what  not,  446. 

how  their  real  estate  may  be  aliened,  446,  447. 

power  is  derived  from  the  statute,  447. 

unable  to  devise  lands,  472. 

may  take  by  devise,  474. 
INJUNCTION, 

when  granted  to  protect  a  franchise,  201. 

4ind  when  not,  202. 


INDEX.  ggj 

INSANE, 

rights  of,  under  statute  of  limitations,  358,  359.     See  Idiots.     Ltoatio. 

how  their  lands  may  be  aliened,  448,  449 
INSURANCE, 

by  wife,  of  life  of  her  husband  fbr  her  benefit  allowed,  296. 

how  large  a  premium  may  be  paid  out  of  husband's  estate.  296. 
INTEREST,  * 

mode  of  computing  on  foreclosure,  147. 

upon  interest,  not  recoverable,  147. 

if  voluntarily  paid,  it  cannot  be  recovered  back,  147. 

such  agreement  is  not  usurious,  147. 

recoverable  on  rent  in  arrear,  214. 
ISSUE, 

meaning  of  the  term,  as  declared  by  statute,  168. 

dying  without,  means  at  the  time  of  tlie  ancestor's  death,  168. 

J 

JOINT  ESTATES, 

join/ TENANCY  '  """P^'''"^'^'  J^''^*  '^^^^^^y  and  tenancy  in  common,  176. 
created  by  purchase,  177. 
in  what  cases  it  now  exists,  177,  178. 
properties  and  incidents  of  it,  178. 
can  compel  partition,  179. 
provisions  relative  to,  179. 
trustees  and  executors  hold  in  joint  tenancy,  182. 
right  of  survivorship,  182. 
words  by  which  it  is  created,  410.     See  Deed. 
estates  held  in,  not  devisable,  480. 
JOINTURE, 

what  it  is  and  how  made,  67. 
by  testamentary  provision,  68,  69. 
when  widow  to  elect,  69. 
when  forfeited  by  adultery,  71. 

provided  for  in  a  marriage  settlement,  628.     See  Appendix  of  Forms 
JUDICIAL  SALES, 

not  affected  by  statutes  against  selling  titles  to  lands  held  adversely,  371. 
how  conducted  by  sheriff,  455.     See  Sheriff.     Judgment. 
titles  under  judicial  sales,  how  examined,  544.    See  Abstracts 
JUDGMENTS, 

lien  of,  on  real  estate,  151,  152. 

must  be  filed  and  docketed,  152,  153. 

lien  not  lost  by  delay,  153. 

continues  ten  years  from  the  day  of  the  docket,  153,  154. 

of  U.  S.  courts,  are  also  liens,  154. 

when  an  extinguishment  of  simple  contract,  304. 

sale  under  judgments  and  executions,  454  et  seq. 

judgment  must  be  a  lien,  455. 


682  INDEX. 

JUDGMENTS— con/mwed 

what  title  may  be  sold,  456. 

binds  only  corporeal  hereditaments,  456. 

distinction  between  void  and  erroneous,  461. 

searching  for,  against  vendor,  529,  530.     ^See  Abstracts,  531,  532. 

■when  entered  up  against  a  dead  man,  532. 

lien  of,  extinguished  by  sale  of  the  land,  532. 


KIN, 


K 

nest  of,  the  persona  to  whom  the  undisposed  of  personalty  is  distributed  by 

statute,  316. 
may  be  the  same  persons  as  the  heirs,  and  may  be  different,  316. 
mode  of  computing  the  degrees  of  relationship,  317. 

L 

LAND, 

who  may  hold,  44. 

the  people  the  ultimate  source  of  title,  42,  344. 

meaning  of  the  term,  47. 

when  it  is  the  primary  fund  to  pay  a  mortgage,  146, 

comprehends  the  water  passing  over  it,  222. 

mide  of  granting  it,  is  of  land  covered  with  water,  222. 

and  not  the  water  itself,  222. 

action  is  never  brought  to  recover  water  itself,  but  the  land  covered  with 
it,  222. 

when  treated  as  money,  261.      See  Equitable  Conyersion.     Descent. 
Purchase.     Sale  under  Judgment  and  Execution,  455-457. 
LANDLORD  AND  TENANT, 

when  destruction  of  building  by  fire  absolves  the  tenant,  210. 

what  eviction  excuses  from  payment,  209. 

when  rent  may  be  apportioned,  210. 

interest  recoverable  for  rent  in  arrear,  214. 

when  rent  suspended  or  extinguished,  217,  218. 

effect  of  the  relation  on  adverse  possession,  357. 

when  the  possession  of  the  tenant  is  the  possession  of  the  landlord,  358. 
See  Lease,  infra.    Landlord  and  Tenant,  in  the  appendix. 
LAPSE 

of  a  devise,  when  prevented,  498.     See  Devise. 
LEAP  YEAR, 

the  added  day  and  day  preceding  are  reckoned  as  one  day,  81. 

statute  on  the  subject  referred  to,  81. 
LEASE, 

usually  in  writing',  80. 

a  parol  lease  for  one  year  good,  80. 

computation  of  time  in,  81. 

may  be  created  to  commence  in  futuro,  81. 


INDEX.  683, 

LEASE — continued. 

is  denominated  a  chattel  interest,  81. 

may  be  assigned  by  lessor  or  lessee,  82. 

attornment  by  tenant  to  a  stranger,  void,  82. 

assignment  of  reversion,  effect  of,  82. 

tenant  must  pay  rent,  though  premises  destroyed  by  fire,  83. 

statute  of  1860  on  the  same  subject,  428. 

right  to  fixtures  and  to  emblements,  83, 

letting  land  on  shares  not  a  lease,  90. 

limitation  of  terra  by  constitution  of  New  York,  90,  91. 

conditions  in,  against  right  of  lessee  to  assign,  107. 

■when  license  to  assign  will  discharge  condition,  107. 

assent  to  assign,  express  or  implied,  108. 

forfeiture  once  waived  cannot  be  claimed,  108. 

rent  reserved  by,  to  lessor  or  his  heirs,  208. 

usually  reserved  in  leases,  208. 

may  be  reserved  in  grants  in  fee,  208. 

by  what  words  different  estates  are  created,  409,  410.     See  Deed. 

its  proper  definition,  and  words  by  which  made,  423. 

letting  land  upon  shares  not  a  lease,  424. 

grants  in  fee,  reserving  rent,  are  called  leases,  425. 

usually  called  durable  leases,  425. 

iisual  form  of  leases,  425.     See  Appendix. 

oral  lease,  for  more  than  a  year,  void  by  statute  of  frauds,  426. 

covenants  in  leases,  express  and  implied,  426,  411. 

advisable  that  they  should  be  express,  427. 

covenants  usually  inserted  in  leases,  429-431.     See  Covenakts. 

who  may  make  leases,  432. 

of  agricultural  land,  limited  to  12  years,  432. 

by  tenant  by  curtesy,  or  in  dower,  432. 

by  religious  corporation,  432. 

by  guardian  in  socage,  432,  433. 

by  testamentary  and  other  guardians,  433. 

by  executors  &c.  joint  tenants,  433. 

all  persons  may  be  lessees,  433.     See  Appendes. 
LEASE  AND  RELEASE, 

allowed  to  be  used  and  called  a  grant,  443. 

origin  and  object  of  it,  444. 
LEASEHOLD  ESTATES, 

are  such  as  are  less  than  freehold,  80. 
the  estate  is  often  called  a  term,  80. 

must  have  a  certain  beginning  and  certain  end,  80. 

there  is  a  privity  between  lessor  and  lessee,  80. 

are  created  by  the  act  of  the  parties,  80. 

an  estate  for  a  month,  or  a  week,  is  called  an  estate  for  years,  80, 

usually  created  by  a  written  lease  80,  423.     See  Lkase,  423  et  sej. 


684  INDEX. 

LEGACY, 

when  and  bow  charf^ed  on  real  estate,  343. 

what  language  creates  a  charge,  343. 
LEGAL  ESTATE, 

vested  in  feoffee  to  uses,  229. 

the  same  rule  applies  to  trusts,  231,  232. 

vests  in  trustee,  if  it  be  a  legal  trust,  232,  237. 

if  the  trusts  be  invalid,  the  legal  estate  does  not  vest  in  trustee,  236. 

it  vests  in  the  party  beneficially  interested,  236. 

person  seised  of  in  trust,  compellable  to  execute  the  trust,   237.     See 
Trusts. 
LEGISLATURE, 

not  estopped  by  one  grant  from  making  another  to  other  parties,  201,  202. 
LEGITIMACY, 

necessary  at  common  law  to  inherit  from  ancestor,  318. 

bow  the  rule  is  under  the  statute,  318. 

what  constitutes  legitimacy,  818.     See  Bastaeds.    Descent. 
LESSEE, 

form  of  his  covenant  to  pay  rent,  427, 

usual  covenants  in  leases,  426,  427.     See  Covenants. 

if  premises  destroyed  by  fire,  without  tenant's  fault,  not  liable  to  pay  rent, 
unless  otherwise  agreed,  428. 

should  protect  himself  by  covenants  for  such  contingency,  428. 

covenants  to  repair  &c.  by  tenant,  429. 

to  yield  up  at  the  end  of  the  term,  429. 

to  pay  taxes,  429. 

not  to  assign  without  leave,  430. 

what  constitutes  such  assignment,  431. 

all  persons,  natural  or  artificial,  may  be  lessees,  433. 
LESSOR, 

covenants  by,  in  leases,  are  express  or  implied,  426.     See  Covenants. 

usual  covenants  by,  427,  428  et  seq. 

covenant  to  rebuild,  428. 

this  covenant  runs  with  the  land,  428. 

sometimes  covenants  to  renew  the  lease,  430. 

also  for  quiet  enjoyment,  430. 
LIEN, 

of  vendor  for  the  purchase  money,  114. 

analogous  to  an  equitable  mortgage,  114. 

so  also  is  the  deposit  of  titles  as  security  for  a  loan,  114. 

for  purchase  money,  not  affected  by  taking  the  note  of  a  third  person,  114. 

it  exists  against  subsequent  purchasers  who  have  not  advanced  a  new  con- 
sideration, 114. 

principle  on  which  the  doctrine  rests,  114,  115.     See  Vendor  and  Vendee. 

a  subsequent  purchaser  without  notice,  who  advances  a  full  consideration, 
not  bound  by  it,  115. 

remedy  to  enforce  it,  in  equity,  115. 

of  mechanics  on  buildings,  150,  151.    >S'ee  Mortgage.   Judgments.  Vendor. 


INDEX.  685 

LIEN — continued. 

of  collector's  bonds,  154, 

taxes  how  far  a  lien,  155. 

of  docketed  judgments,  continues  ten  years,  455. 

searching  for  liens  against  vendor,  529,  530.     See  Abstracts. 

instantaneous  seisin,  not  bound,  124. 
LIFE  ESTATE.     See  Estates  for  Life. 

party  imprisoned  for,  civilly  dead,  359. 
LIGHT, 

the  right  to,  on  what  it  depends,  218. 

remedy  for  obstructing,  219. 

not  the  subject  of  grant,  219. 

protected  by  covenant  or  condition,  219.     See  Ancient  Lights. 
LIMITATION, 

contingent  upon  a  fee,  when  allowed,  167. 

distinction  between  limitation  and  condition,  102,  520. 

limitations  of  chattel  interest,  allowed,  167. 

conditional  one,  170. 

determine  the  estate,  without  entry,  520. 
LIMITATIONS,  STATUTE  OF, 

not  applicable  between  tenants  in  common  as  to  equitable  rights,  187. 

when  applicable  to  trusts  and  when  not,  247,  248. 

how  ftir  affected  by  acts  of  1849  and  1860,  279. 

as  to  real  property  in  this  state,  351,  352. 

an  entry  avoids  the  statute,  352. 

as  against  the  people,  40  years,  in  other  cases,  20,  351. 

extinguishes  right  of  former  owner,  351,  358. 

disabilities  which  prevent  statute  from  running,  358,  359. 

nature  of  these  disabilities  when  the  claim  relates  to  land,  358,  359. 

1.  infancy,  358. 

2.  insanity,  358. 

3.  imprisonment  on  a  criminal  charge,  358. 

4.  coverture,  358,  359. 

ten  years  allowed  after  the  removal  of  the  disability,  359. 

a  party  imprisoned  for  debt  only,  not  within  the  exception,  359. 
imprisoned  for  life,  is  civilly  dead,  359. 

statute,  with  respect  to  real  property,  begins  to  run  from  the  time  the  ad- 
verse holding  begins,  354. 

does  not  run  in  favor  of  one  entering  without  claim  of  right,  359. 

does  not  allow  of  successive  disabilities,  359. 

right  of  entry  of  remainderman,  not  affected  if  the  particular  estate  existed 
when  the  right  accrued,  360. 

the  same  as  to  a  reversioner,  360. 

if  owner  be  a  feme  covert  when  the  adverse  possession  begins,  she  is  en- 
titled to  ten  years  after  her  disability  ceases,  360. 

and  to  twenty  years  in  all,  360. 

the  time  of  her  coverture  is  not  to  be  deducted  from  the  twenty  years,  360. 

policy  of  the  statute,  361. 


686  INDEX. 

LIMITATIONS,  STATUTE  OF— continued. 

statute  against  selling  lands  held  adversely  does  not  apply  to  judicial  sales, 
361. 

court  of  equity  acts  upon  the  principles  of  the  statute,  362.    See  Adveesb 
Possession.    Adverse  Enjoyment. 
LINEAL  DESCENDANTS, 

how  defined,  317.     See  Descent. 
LIVERY  OF  SEISIN, 

required  in  case  of  a  feoffment,  373. 

unnecessary  under  the  laws  of  this  state,  373. 
LOCATION, 

practical,  how  far  binding  on  parties,  406. 

ground  on  which  it  rests,  406. 
LUNATIC, 

defined  as  a  person  destitute  of  understanding,  at  the  time  of  the  act,  377. 

it  need  not  have  existed  from  birth,  377. 

may  be  grantee  in  a  grant.  377. 

how  his  lands  may  be  sold,  448,  449. 

unable  to  devise  lands,  472* 

may  take  by  devise,  474. 

M 

MAINTENANCE, 

how  treated  by  the  statutes,  371. 
MANURE, 

of  a  farm  let  for  agricultural  purposes,  84. 

if  no  stipulation  or  custom  to  the  contrary,  cannot  be  removed  by  the 
tenant,  85. 

it  belongs  to  the  farm,  85. 

MAP, 

may  be  referred  to  in  a  deed  to  describe  the  premises,  405. 

number  of  the  lot  in  a  certain  map  is  a  good  reference,  405. 
MARBLE  CHIMNEY  PIECES, 

put  up  by  the  tenant  may  be  removed  by  him  during  his  term^  86. 

leaving  them  till  after  his  term  ends  affords  a  presumption  of  his  abandon- 
ing them,  86. 

he  is  then  a  trespasser  if  he  enters,  86.     See  Fixtures. 
MARRIAG-E  SETTLEMENTS, 

origin,  policy  and  effect  of,  272. 

property  of  the  wife,  how  affected  by  the  marriage  at  common  law,  272. 

husband's  right  at  common  law,  1.  to  her  chattels  personal,  272. 

2.  choses  in  action,  272. 

3.  chattels  real,  272. 
design  of  marriage  settlements,  273. 

policy  of,  273,  274. 

remarks  on  statutes  of  1848,  1849  and  1860,  274,  277,  282. 
deed  by  married  woman  under  act  of  1849  does  not  require  the  joinder  of 
her  husband,  277.  " 


INDEX.  687 

MARRIAGE  SETTLEMENTS— con imwed 

must  be  acknowledged  on  private  examination,  277. 

she  cannot  bind  hei  self  1  y  covenants,  277. 

nor  is  she  estopped  by  her  vrarranty,  277. 

those  statutes  intended  to  supersede  marriage  settlements,  248. 

■when  husband  not  hable  for  contracts  of  vrife,  278. 

not  a  necessary  party  to  her  action,  278. 

how  far  her  right  to  sue  affects  the  exception  in  the  statute  of  limitations, 

279. 
trustee  should  be  appointed  in  marriage  settlements,  279. 

but  not  indispensable,  279. 
trust  in,  should  not  suspend  the  power  of  alienation,  beyond  what  the  statute 

allows,  280. 
nor  in  relation  to  personal  property,  280. 
rule  with  respect  to  suspension  stated,  280. 
.    cases  on  the  subject  referred  to,  280,  281  et  seq. 
trusts  to  pay  over  to  the  beneficiary,  good,  281,  282. 
should  provide  for  the  wife's  receiving  the  income,  282. 
wife  must  execute  power  in,  as  directed,  282. 
clause  against  anticipation,  when  necessary,  283. 
provided  for  in  revised  statutes,  283. 
equity  aids  defects  in  marriage  settlements,  286. 

different  kinds  of,  considered,  286  et  sej.     See  Ante-Nuptial  Agreements. 
Post  Nuptial  Agreements. 
MARRIED  WOMAN, 

if  residing  in  this  state,  how  her  deed  is  to  be  acknowledged,  123. 
when  a  non-resident,  how  done,  123. 

before  what  officers,  and  the  form  of  the  acknowledgment.     See  Appendix. 
laws  with  respect  to  their  rights  and  property,  1848,  1849,  1860—140,  258, 

269,  274,  277,  327,  328,  391.     See  Marriage  Settlements. 
effect  as  to  curtesy,  59,  60. 

a  legal  marriage  essential  to  dower,  65. 

effect  of  divorce  on  dower,  65,  66. 

cannot  convey  directly  to  her  husband,  and  how  it  is  done  circuitously,  265^ 
292,  392. 

may  insure  life  of  her  husband  for  her  benefit,  296. 

her  rights  under  statute  of  hmitations,  358. 

disability  at  common  law  to  alien  land,  377. 

may  be  grantee,  377. 

her  rights  under  act  of  1860,  327,  and  note,  328. 

remarks  on  said  statute,  452  et  seq. 

her  rights  at  common  law,  392. 

sale  of  lands  by,  451. 

when  trusts  for,  surrendered  to,  451,  452. 

when  husband  will  not  consent,  453. 

how  his  assent  may  be  made,  453. 

unable  to  devise  land  except  by  late  laws,  472. 

may  take  by  devise,  474. 


688  INDEX. 

MAXIMS, 

with  respect  to  title  in  land,  46,  218. 
to  merger,  50,  299. 
to  dower,  63. 
to  priority  of  time,  115. 
to  inheritance,  163,  168. 
to  joint  tenancy,  179. 
to  delegation  of  powers,  270. 
to  construction  of  deeds,  396,  402,  403. 
to  quality  and  condition  of  thiilgs  bought,  427. 

generaJ,  in  the  construction  of  wills,  604,  505,  506. 

with  respect  to  wills,  509. 
MINES 

of  gold  and  silver,  to  whom  belong,  50,  '51. 
MISTAKES, 

in  execution  of  powers,  when  aided  in  equity,  266,  267.     See  Powhbs. 
MERGER, 

how  defined,  50,  296,  297. 

is  the  act  of  the  law,  297. 

object  of  it,  297. 

acts  of  the  law  analogous  to  it,  297,  298. 

extinguishment,  suspension,  discontinuance,  remitter,  297,  298. 

what  is  indispensable  to  merger,  306. 

must  be  two  or  more  estates,  306. 

applies  to  leases,  307. 

must  unite  in  the  same  person,  in  the  same  right,  without  intervening 
right,  307,  308. 

when  equity  will  keep  both  estates  alive,  308,  309. 

merger  pro  tanto,  when  it  occurs,  309. 

cases  to  illustrate,  309,  316. 

gradation  of  estates,  showing  which  is  the  highest,  310,  311. 
MONEY, 

when  treated  as  land,  261. 
MONTH, 

when  used  in  a  contract,  is  treated  as  a  calendar  month,  81. 

unless  otherwise  expressed,  81. 
MONUMENTS, 

in  a  deed,  control  courses  and  distances,  405. 

what  is  most  material,  has  the  greatest  influence,  405. 

thus,  a  river,  a  marked  tree,  and  the  Uke,  405.     See  Boundaby. 
MOHTGAQE, 

nature  and  form  of,  109. 

power  of  sale  in,  110,  253. 

may  be  in  fee,  or  for  years,  110. 

no  covenant  implied  to  pay  the  mortgage  money,  110. 

usually,  has  an  express  covenant  or  a  bond  or  note  accompanying,  110. 

not  essential  to  have  such  covenant,  110. 

or  a  power  of  sale,  110. 


INDEX.  689 

MORTGAGE— c<?nfinM«f. 

no  remedy  by  ejectment  till  foreclosure,  110. 

when  remedy  in  equity  only,  110. 

difference  between  conditional  sales  and  a  mortgage,  111. 

defeasance  usually  inserted  in  same  instrument,  111. 

may  be  in  a  different  one,  111. 
a  deed  absolute  in  terms  may  be  shown  to  be  a  mortgage  by  parol,  112, 113. 
assignment  of  mortgage  may  be  by  parol,  113. 
assignee  of,  takes  subject  to  equities  of  the  other  parties,  113. 
lien  of  vendor  for  purchase  money  analogous  to  mortgage,  114,  124. 
several  equities  attach,  according  to  priority,  115. 
mortgagor  deemed  seised  of  the  land,  116. 
and  may  devise  it  before  foreclosure,  481. 
statute  makes  no  difference  between  a  mortgage  in  fee  and  for  a  term  of 

years,  116. 
mortgage  is  a  mere  security  for  the  debt,  116. 
outstanding  mortgage  not  a  breach  of  the  covenant  of  seisin,  117. 
may  be  for  future  advances,  117. 
mode  of  taking  such  security,  117,  118. 
recording  and  priority  of,  119,  396. 
object  of  recording,  120,  396,  397. 
danger  of  omitting  to  record,  120. 

as  to  deeds  absolute  in  terms,  converted  into  mortgage  by  parol,  120,  398. 
effect  of  notice  to  the  party,  when  not  recorded,  120. 
to  entitle  it  to  be  recorded,  must  be  acknowledged  or  proved,  122. 
manner  of  doing  it,  122,  338-398.     For  forms  of,  see  Appendix, 
by  married  woman,  how  taken,  123. 
how  proved  by  the  witnesses,  123. 

mortgage  not  registered  preferred  to  subsequent  docketed  judgment,  124, 
instantaneous  seisin,  effect  of,  124. 
when  two  or  more  deeds  are  executed  and  recorded  simultaneously,  effect 

of,  124,  129. 
rights  and  interests  of  parties  at  law  and  equity,  125. 
difference  of  the  American  and  English  doctrine,  125. 
no  reconveyance  necessary  on  payment,  126,  128,  130. 
remedies  of  the  mortgagee,  126,  127. 
what  mortgagor  in  possession  may  do,  127. 
when  he  may  cut  timber,  127. 

when  mortgagee  will  be  restrained  from  selling,  127. 
as  to  accounting  between  the  parties,  128. 
what  expenses  allowed  mortgagee  in  possession,  128. 
how  discharged  on  payment,  129. 
form  of  certificate,  &c.  129. 

effect  of  tender,  of  the  amount  due  on  the  lien  of  the  mortgage,  130. 
as  to  mortgages  to  loan  officers,  130,  131. 
a  sale  by  one  commissioner  not  good,  131. 
power  of  sale  and  statutory  foreclosure,  132  et  seq. 
proceedings,  how  conducted,  133,  134. 

WiLL.~44 


690  INDEX. 

UORTGAG'Er— continued. 

how  long  a  notice  to  be  given,  and  on  whom  served,  134. 

proceedings,  when  debt  payable  by  installments,  135. 

how,  when  condition  for  performance  of  covenants,  136. 

sale  must  be  at  public  auction,  136. 

proceedings  when  different  tracts  are  contained  in  the  mortgage,  136. 

order  to  sell  in  parcels,  when,  136. 

not  necessary  that  a  deed  should  be  given  on  sale,  137. 

what  is  the  substitute  therefor,  137. 

effect  of  statute  foreclosure,  137,  138. 

no  provision  as  to  infancy,  usury,  &c.  139, 

remedy  in  such  cases  in  equity,  139. 

with  respect  to  non-residents,  139. 

wife,  when  an  infant,  cannot  execute  a  deed,  140. 

effect  of  laws  of  1849  and  1860,  140. 

foreclosure  of  mortgages  in  equity,  141.     See  Foreclosctbe.     Eqcttt  or 
Redemption. 

different  parts  to  be  charged  in  the  inverse  order  of  alienation,  146. 

of  franchise  of  rail  road,  147,  148, 

usual  practice  in  such  cases,  149. 

power  to  mortgage  includes  right  to  grant  power  of  sale  to  mortgagee,  253. 
See  Powers. 

power  of  sale  in  mortgage  a  part  of  the  security,  and  passes  to  assignee,  267. 

it  is  a  power  coupled  with  an  interest,  and  survives  the  grantor  of  the 
power,  267. 

it  is  irrevocable,  267. 

extinguishment  of,  by  uniting  the  legal  and  equitable  estates,  304,  305. 

merger  by  uniting  legal  and  equitable  estates,  301,  302.     See  Deed.     Ac- 
knowledgment. 

lien  of  mortgage  considered,  537,  538. 

how  discharged,  537,  538. 

if  mortgagee  dead,  his  executors  or  administrators  to  discharge  it,  538. 

of  the  party  by  whom  it  should  be  made  and  paid  for,  558-562. 
MORE  OR  LESS, 

in  a  deed,  is  matter  of  description,  and  not  conclusive,  405. 
MOTHER, 

when  to  inherit  from  her  child,  331,  332.    See  Descent. 


N 

NATURAL  BORN 

citizens,  capable  of  inheriting,  44. 

difference  between,  and  denizen,  321,  note. 
NATURALIZATION, 

effect  o^  45,  46,  318,  319,  320,  477,  502.    See  Alien.    Descent. 
NEGRO, 

free,  may  hold  and  convey  real  estate,  44. 


INDEX.  691 

NEXT  OF  KIN, 

persons  to  whom  the  statute  of  distributions  gives  the  undisposed  of  person- 
alty of  the  deceased,  316. 

may  be  the  same  persons  as  heirs,  316. 
NON  COMPOS  MENTIS, 

incapacity  of,  to  make  deed,  376,  377. 

to  make  a  will,  472,  473.    See  Insane.    Idiot.    Lunatic. 
NON-USER, 

evidence  of  a  relinquishment  of  a  right,  219. 

if  such  right  was  acquired  by  user,  196. 
NOTARY  PUBLIC, 

may  use  a  stamp  for  a  seal,  383. 
NOTICE  y 

of  unrecorded  mortgage,  effect  of  120. 

to  agent  or  attorney,  sufficient,  120. 

to  supply  defect  of  recording,  must  be  full  and  clear,  121. 

hoTia  fide  purchaser,  without  notice,  holds  the  land  discharged  of  the  lien, 
121. 

meaning  of  the  terms,  121,  122. 

of  intention  to  re-enter  for  non-payment  of  rent,  when  to  be  given,  212, 
213. 

when  chargeable  with  notice  of  attorney's  power,  271. 
NUISANCE, 

in  obstructing  air,  light,  or  water  courses,  remedy  for,  219,  220. 
NUMBER  OF  LOT, 

land  may  be  described  by,  405. 

whole  land  embraced  in  it-  passes,  405. 

number  of  acres  in  a  grant,  is  mere  matter  of  description,  405. 
NURSERYMEN  AND  GARDENERS 

may  remove  plants,  84. 

when  it  is  in  the  course  of  their  business,  84. 

such  removal  belongs  to  their  trade,  84. 

right  is  sometimes  provided  for  in  the  lease,  84. 


0 

OCCUPANCY, 

actual,  when  necessary  to  create  an  adverse  possession,  355. 

what  constitutes  such,  355. 

title  by,  defined,  362. 

how  regulated  by  statute,  362. 
ORNAMENTAL 

fixtures,  removable  by  tenant,  86. 

such  as  chimney  pieces,  pier  glasses  &c.  put  up  by  him^  86. 
OUSTER, 

of  co-tenant,  when  necessary  to  entitle  him  to  sue.  357. 

what  constitutes  it,  357. 


692  INDEX. 

OUTLAWRY, 

for  treason,  its  effect  on  law  of  descent,  322. 
OWNER  OF  LAND,, 

may  quiet  his  title  by  buying  in  adverse  claims,  357. 
OWNERSHIP, 

acts  of,  their  effect  on  adverse  possession,  356. 


PARENTS, 

when  allowed  to  inherit  from  children,  327. 

how  under  act  of  1860,  327,  328. 

defect  of  that  law  pointed  out  in  note,  328. 

bound  to  support  child,  338.     See  Advancesient. 
PARTITION, 

may  be  compelled  between  joint  tenants,  18L 
and  tenants  in  common,  181. 
by  statute  and  the  common  law,  185. 

when  it  cannot  be  made  by  metes  and  bounds,  185. 

in  what  cases  a  sale  ordered,  185,  186. 

in  what  way  of  a  mill,  186. 

when  any  of  the  parties  are  absentees,  186. 

not  indispensable  that  all  shares  should  be  equal,  186. 

how  equity  proceeds  in  such  cases,  187. 

when  one  tenant  makes  improvements,  187. 

limitation  of  actions,  how  affected  by,  187. 

account  lies  between  co-tenants,  188. 

evils  of  joint  ownership,  188. 

contribution  as  to  repairs,  188. 

danger  of  allowing  one  tenant  to  make  repairs,  without  request  of  his  co- 
tenant,  189. 

remedy  in  equity,  189. 

how  made  by  the  parties,  435,  436. 
PARTIES  AND  PRIVIES, 

estopped  by  recitals  in  deed,  366.     Set  Estoppel.     Deed. 
PEDIGREE, 

when  necessary  to  examine.     See  Abstracts,  528. 
PEOPLE  OF  THE  STATE, 

deemed  the  ultimate  proprietor  of  all  land  within  it,  42,  344. 

escheated  lands,  held  by,  subject  to  trusts,  345. 

evidence  by,  to  entitle  them  to  recover,  346. 

their  advantage  over  individuals,  346. 
PERSONAL  ESTATE, 

the  primary  fund  to  pay  debts  of  intestate,  339,  340. 
PERMISSIVE  WASTE, 

how  defined,  79. 

nature  and  extent  of  tenant's  liability  for,  79. 


INDEX.  693 

POSSESSIO  PEDIS, 

application  of  it  to  adverse  possession,  355.     See  Adyerse  Possessiok. 
POST-NUPTIAL  AGREEMENTS 

considered,  292  et  seq. 

in  pursuance  of  agreement  before  marriage,  292. 

when  upheld  in  equity,  292. 

when  good  against  creditors,  and  when  not,  292,  293. 

what  a  sufficient  consideration,  293. 

no  technical  words  necessary  to  create  a  trust  for  a  married  woman,  294. 

wife's  separate,  subject  to  incidents  of  ownership,  294. 

she  may  give  it  to  her  husband,  294. 

duty  of  husband,  at  common  law,  as  to  debts  of  wife  before  covertufe,  294, 
295. 

how  modified  by  act  of  1853,  295. 

wife  may  insure  life  of  husband,  295. 

how  modified  by  act  of  1858,  296.     ^ee  Makriage  Settlemekts.    Ante- 
Nuptial  Agreements. 
POSTHUMOUS  CHILDREN, 
how  provided  for,  171. 
when  to  inherit,  318,  327. 
may  take  by  devise,  474. 
POWER 

of  sale  in  mortgages,  132. 

is  part  of  the  security,  and  assignable,  110. 
form  and  efiect  thereof,  132. 
how  executed,  1^7. 
sale  under,  must  be  at  auction,  136. 
and  in  the  day  time,  136. 
premises  when  to  be  sold  in  parcels,  136. 
power  by  feme  covert,  in  general,  void,  139. 
with  respect  to  non-residents,  139. 
of  alienation,  when  suspended,  164. 
future  estates  void  which  suspend  it,  164. 
POWERS, 

of  two  sorts,  at  common  law  and  by  statute,  248. 
under  the  statute,  how  defined,  249,  250. 
how  at  common  law,  249. 
distinction  between  trusts  and  powers,  250. 

married  woman  may  execute  a  power  reserved  in  an  ante-nuptial  contract,  251. 
in  all  cases  under  act  of  1860,  251. 

distinction  between  a  nalced  power  and  a  power  coupled  with  an  inter- 
est, 251,  252. 
different  kinds  of  powers  under  the  statute,  252. 
who  the  grantor,  and  who  the  grantee  of,  252. 
restraining  and  enabling  powers  defined,  252. 
appendant,  collateral  or  in  gross,  defined,  252. 
by  what  words  created,  253. 
when  construed  with  reference  to  intent,  253. 


(J94  INDEX. 

TOWERS— cmtinued. 

power  to  mortgage  includes  authority  to  grant  a  power  of  sale  to  mort- 
gagee, 253.  ^ 

naked  power,  to  sell,  must  be  strictly  pursued,  254. 

to  sell  land  for  a  certain  price,  means  for  cash,  254. 

must  be  executed  as  directed  by  the  will,  254. 

a  general  and  beneficial  power  may  be  given  to  a  married  woman,  255. 

if  she  be  an  infant,  it  cannot  be  executed  till  she  becomes  of  age,  255. 

when  given  to  several,  all  must  unite,  255. 

if  one  or  more  die,  survivors  may  execute  it,  255. 

applies  to  executors,  255. 

when  consent  of  third  person  required,  how  such  consent  must  be  indi- 
cated, 256. 

may  be  vested  in  any  person  capable  of  holding  an  estate,  256,  259. 

power  of  revocation  reserved  to  grantor,  is  the  same  as  to  creditors,  as 
ownership,  257. 

power  granted  to  married  women,  258. 

instrument  containing  power,  must  be  recorded  to  protect  the  estate,  258. 

acts  of  1848  and  1849,  as  to  married  women,  258. 

when  general  power  is  in  trust,  259. 

when  special  power  is  in  trust,  259. 

every  trust  power  is  imperative  259. 

when  disposition  is  to  be  made  to  a  class,  all  persons  entitled  to  an  equal 
share,  260. 

when  power  in  trusts  is  created  by  will,  and  testator  has  failed  to  specify 
by  whom  it  is  to  be  executed,  the  supreme  court  appoints,  259. 

when  testator  directs  his  land  to  be  sold  to  pay  debts  or  legacies,  executors 
have  the  power,  261. 

when  by  implication,  261. 

party  paying  in  good  faith  to  one  having  a  power  to  receive,  not  responsible 
for  application  of  the  money,  262. 

by  what  instruments  power  created,  262. 

time  of  executing  a  power,  262. 

formalities  and  incidents  of  powers,  263,  264. 

grantee  of  a  power  need  not  recite  the  instrument  creating  it,  in  his  convey- 
ance under  the  power,  264. 

wife  must  execute  power,  in  her  marriage  settlement,  as  directed  therein,  282. 

how  they  must  be  executed,  265,  266. 

defective  execution  decreed  in  equity,  266. 

when  coupled  with  an  interest,  irrevocable,  267. 

may  be  extinguished,  released  or  suspended,  according  to  their  nature,  268. 
POWERS  OF  ATTORNEY, 

to  convey  lands,  defined,  268. 

must  be  under  seal,  268. 

merely  to  contract  to  sell  land  need  not  be  under  seal,  268. 

may  be  given  by  party  having  a  right  to  sell,  268. 

by  married  woman  under  act  of  1848,  1849,  269. 

>>v  uon-resident  married  females,  under  the  act  of  1853,  ch.  275,  269. 


INDEX  695 

POWERS  OF  ATTORKEY-^onUnued. 

may  be  revoked  by  principal,  269,  270. 

when  and  where  revocation  must  be  recorded,  269. 

notice  of  revocation,  how  given,  269. 

attorney  cannot  bind  his  principal  by  covenants,  270. 

nor  delegate  his  authority,  270. 

unless  a  power  of  substitution  is  given,  270. 

power  to  two  or  more  cannot  be  executed  by  one,  270. 

except  in  matters  of  public  concern,  270. 

death  of  principal  a  revocation,  270.    , 

except  in  powers  coupled  with  an  interest,  270. 

must  be  executed  in  the  name  and  as  the  act  of  the  principal,  271. 

if  attorney  affix  his  own  name  and  seal  only,  it  is  void,  271. 

if  executed  for  several,  one  seal  sufficient,  271. 

should  be  duly  acknowledged  or  proved  and  recorded,  271. 

receives  a  strict  interpretation,  271. 

a  party  dealing  with  an  attorney  chargeable  with  notice  of  the  contents  of 
the  power,  271. 

coupled  with  an  interest,  irrevocable,  267. 
PRE-EMPTIVE 

right  of  purchase  by  grantor  repugnant  to  estates  in  fee,  165,  431. 
PREFERENCE 

of  males  to  females  in  the  law  of  descent,  modified  or  abolished,  323. 
PRESCRIPTION, 

is  predicated  only  of  incorporeal  things,  347. 

cannot  prescribe  for  a  nuisance,  347. 

two  kinds  of  prescription,  347,  348. 

in  a  que  estate  how  to  be  laid,  348. 

cannot  be  of  a  user,  less  than  20  years,  348. 

may  be  of  an  easement,  348. 

how  it  differs  from  a  dedication,  349. 

not  extended  to  ancient  lights,  344. 

principles  of  the  statute  of  limitations  govern  as  to  timCj  350. 

must  be  certain  and  peaceable,  350. 

not  lost  by  a  temporary  relinquishment,  350. 

adverse  enjoyment  and  kind  of,  351.     See  Adverse  Enjoyment. 
PRESUMPTION, 

of  grant  to  air,  light,  &c.,  219. 

twenty  years  adverse  enjoyment,  219. 

the  like  as  to  water  courses,  222. 
PRIMOGENITURE, 

abolished  in  this  state,  in  the  law  of  descent,  32J. 
PRINCIPAL, 

may  act  by  attorney  in  making  a  deed,  393. 

in  making  contract  for  sale  of  land  under  the  statute 
of  frauds,  375,  376. 
PRIORITY 

of  incumbrances,  115,  119,  396.     See  Mobtgase. 


696  INDEX. 

PRIVITY, 

between  ancestor  and  heir,  devisor  and  devisee,  grantor  and  grantee,  366, 
412,  416. 
PROFITS.     See  Rent. 
PURCHASE, 

title  by,  315,  343-345. 

of  land  held  adversely,  void,  360,  371, 

unless  purchaser  is  in  possession,  360,  357. 

of  lands  in  suit,  scienter,  371. 

by  public  officers,  of  persons  out  of  possession,  371. 
PURCHASE  MONEY, 

a  lien  upon  the  land,  114. 

against  vendee,  his  heirs,  114. 

volunteers  and  purchasers  with  notice,  114. 

principles  on  which  it  rests,  114,  115.    Set  Lien.    Trusts. 
PURCHASER, 

meaning  of  the  term,  122. 

wiiat  is  a  valuable  consideration,  121. 

of  the  franchise  of  rail  roads,  may  form  a  new  company,  148. 

may  contest  validity  of  creditor's  claims  against  the  estate  purchased  of 
heirs,  &c.,  341. 

may  quiet  his  title  by  buying  in  adverse  claims,  357,  360. 

what  title  he  acquires  on  a  sheriflTs  sale,  462. 

wben  entitled  to  the  original  deeds,  546,  547. 


Q 

QUALIFIED  OR  BASE  FEES,  No.  51, 54. 
QUALITY 

of  an  estate  has  reference  to  the  manner  of  its  enjoyment,  47. 
QUANTITY 

of  an  estate,  signifies  the  degree  of  interest  the  owner  has  in  it,  47. 
QUARTER  SALES, 

invalid  in  estates  in  fee,  165,  431. 

valid  in  life  estates,  or  estates  for  years,  165. 
QUIA  EMPTORES, 

object  of  it,  296. 

statute  of,  in  force  in  this  state,  207. 
QUIET  ENJOYMENT, 

covenant  for,  in  a  deed,  414. 

it  goes  to  the  possession,  and  not  to  the  title,  414. 

it  runs  with  the  land,  415,  416. 
QUO  ANIMO, 

its  effect  to  characterize  a  possession  of  real  estate,  356. 

an  ingredient  in  adverse  possession,  355,  356. 


INDEX.  697 

RAIL  ROADS, 

have  a  right  to  borrow  money,  147. 

to  mortgage  their  estate  and  franchises,  148. 
not  dissolved,  ipso  facto,  by  sale  of  its  property,  149. 
their  right  to  take  land,  149. 
RATES,  TAXES  AND  ASSESSMENTS.    See  Taxes,  430. 
REAL  ESTATE, 

its  nature,  quality,  &c.  47. 
when  the  primary  fund,  146. 

mode  of  alienation  of,  312  cise J.     5ee  Descent.     PurchaSB. 
charge  made  upon,  by  will,  343,  521,  522. 
lien  upon  by  judgments,  455. 
is  the  subject  of  a  devise,  478. 
REBUILD, 

covenant  to,  sometimes  inserted  in  leases.  429. 
RECEIVERS, 

may  take  certain  trusts,  239,  240. 
RECITALS, 

in  a  deed,  estop  parties,  366,  367. 
of  a  particular  fact  may  estop,  367. 
of  a  lease,  in  a  release,  conclusive,  367. 
RECOGNITION, 

of  title  of  the  owner,  when  a  bar  to  an  adverse  holding,  357. 
RECORD, 

when  it  is  an  estoppel,  364.     See  Estoppel. 
RECOVERIES 

and  fines,  aboUshed,  373. 
RELEASE, 

how  defined,  and  the  different  kinds,  436. 
the  requisites  of,  436. 
operative  words  in,  437. 
RELIGIOUS  CORPORATIONS, 
how  created,  240. 
what  trusts  they  may  execute,  242. 
how  permitted  to  alien  lands,  445,  446. 
when  devises  to,  void,  500,  501. 
REMAINDER, 

how  defined,  156,  157. 

needs  no  precedent  estate,  157. 

otherwise  at  common  law,  158. 

vested  and  contingent,  158. 

meaning  of  those  terms,  158,  159. 

contingent  remainder  may  be  created  by  will  or  deed,  160. 

cases  to  illustrate  the  rule,  160,  161,  162. 

may  be  created  in  a  term  of  years,  164. 


698  INDEX. 

REilAINDER— c6n<m«cd 

an  estate  for  life  may  be  limited  on  a  term  of  years,  164. 

contingent  remainder  in  fee  may  be  limited  on  a  prior  remainder  in  fee,  164 

void  when  it  suspends  power  of  alienation,  164. 

cannot  be  suspended  by  condition  or  limitation,  164,  165, 

limited  on  chattel  interests,  167,  IfiS. 

freehold  may  be  created  in  futuro,  168. 

the  like  as  to  chattel  interests,  168. 

contingent,  limited  to  persons  not  in  being,  168. 

limited  on  a  condition  subsequent,  170. 

conditional  limitations,  170. 

to  posthumous  children,  good,  171. 

how  defeated  at  common  law,  172. 

cannot  be  so  defeated  now.  172,  173. 

same  rule  in  deeds  as  wills,  172. 

cross-remainders,  how  defined,  173. 

do  not  exist  now,  173. 
REMITTER, 

defined  and  distinguished  from  merger,  298.     ^See  ilEEGER. 
REMOVAL  OF  TRUSTEES, 

by  supreme  court,  246. 

for  what  causes,  246. 
RENEW, 

covenant  to,  sometimes  inserted  in  lease,  430. 

it  runs  with  the  land,  430. 

does  not  imply  that  the  same  covenants  should  be  inserted  in  the  new  lease 
as  in  the  old,  430. 

it  should  be  provided  for,  430. 
RENT, 

meaning  of  the  term,  203. 

three  kinds  at  common  law — rent  service  and  rent  charge,  204. 

covenant  to  pay  runs  with  the  land,  205. 

whether  the  lease  be  for  years,  for  life  or  in  fee,  205,  206. 

effect  of  statute  quia  emptores,  206. 

whether  ever  in  force  in  this  state,  207. 

under  a  durable  lease  or  grant  in  fee,  runs  with  the  land,  207. 

usually  reserved  on  leases,  but  may  be  on  grants  in  fee,  208. 

cannot  be  reserved  to  a  stranger,  208. 

rent  charge  subject  to  dower  and  curtesy,  209. 
lost  by  eviction,  209. 

what  amounts  to  an  eviction,  209. 

reserved  to  the  deceased,  and  which  has  accrued  at  his  death,  belongs  to 
the  personalty,  209. 

a  physical  eviction  by  the  landlord  not  indispensable  to  reUeve  the  tenant 
from  liability  for  rent,  209. 

constructive  eviction  explained,  210. 

when  destruction  of  the  building  by  fire,  absolves  the  tenant,  210. 

apportionment,  when  and  how  made,  210. 


INDEX.  699 

RENT — continued. 

remedies  for  non-payment,  212,  213,  217. 

how  re-entry  is  effected,  2l3,  214. 

interest  recoverable  for  rent  in  arrear,  214. 

use  and  occupation,  214. 

when  rent  suspended,  or  extinguished,  217,  218. 

may  be  reserved  in  a  bargain  and  sale  in  fee,  442. 

is  devisable,  481. 
KENT  CHARGE, 

how  defined,  207. 

may  be  reserved  in  a  deed  in  fee,  207,  425. 

such  deed  usually  called  a  durable  lease,  425. 

subject  to  dower  and  curtesy,  209.     See  Rent. 
REPAIR, 

covenant  to,  inserted  in  leases,  429. 
RESIGNATION 

of  trustee,  when  allowed,  245. 

when  permitted  by  statute,  i245,  246. 

not  allowed  by  the  common  law,  245. 

by  whom  accepted,  246. 

consequences  of,  246. 

what  circumstances  sufficient  to  authorize  a  resignation,  246,  247. 
REPUBLICATION 

of  wills,  how  made,  493,  499.     See  Devise. 

of  two  kinds,  express  and  constructive,  499. 

may  be,  by  a  codicil,  500. 
RESERVATION 

of  rent,  in  leases  and  in  deeds,  208,  442. 

when  in  deeds  in  fee,  called  durable  leases,  208. 
RESIGNATION 

of  trustee,  when  allowed,  245. 

pj:sulting  trusts, 

how  defined,  and  when  allowed,  234,  235.     See  Trusts. 
REVERSAL  OF  A  JUDGMENT, 

destroys  it  as  an  estoppel,  365. 
REVERSIONS, 

arise  from  construction  of  law,  174. 

how  defined,  174. 

how  they  may  lose  their  qualities,  175. 

incidents  of  fealty  and  rent,  175. 

rent  may  be  separated  from,  175. 

grant  of,  carries  the  rent,  175. 

expectant  on  a  freehold  not  subject  to  dower  or  curtesy,  176. 

remedies  for  injury  to,  176. 

owner  of,  may  defend  suits,  176. 
REVIVAL 

of  revoked  will,  rule  at  common  law,  498. 

how  changed  by  statute,  498,  499. 


700  INDEX. 

REVOCATION 

of  power  of  attorney,  when  may  be  made  and  when  not,  267,  269. 

how  revoked,  and  by  whom,  267,  269. 

when,  by  death  of  the  principal,  270. 

of  devises.     See  Devise,  492. 

not  to  revive  a  former  will,  498,  499. 
EIGHT  OF  COMMON.    See  Common. 
EIGHT  OF  ENTRY, 

meaning  of,  352. 

of  reversioner,  not  affected  by  the  statute  of  limitations,  360. 

nor  of  the  remainderman,  360. 
EIGHT  OF  WAY, 

may  be  claimed  by  grant  194. 

prescription,  194. 
reservation,  194.  • 
necessity,  194.    See  Ways. 
EIPARIAN  OWNER, 

rights  of,  considered,  220. 
EIVERS, 

right  to  private  ones,  to  the  center  of  the  stream,  220,  221,  404,  405. 

rule  as  to  boundary  on,  220,  221,  404,  405. 


s 

SALE, 

of  real  estate,  makes  the  vendee  a  trustee  of  the  vendor  for  the  unpaid  pur- 
chase money,  114,  115. 

by  sheriff,  under  a  judgment  and  execution,  454,  455. 
SEAL, 

a  deed  executed  by  several,  need  have  but  one  seal  for  all,  271. 

if  it  is  adopted  as  the  seal  of  all,  271. 

meaning  of  the  word  sealing,  382. 

must  be  wax  or  wafer,  and  an  impression,  382. 

in  what  cases  an  impression  is  sufficient,  383. 

how  by  corporation  and  public  officers,  383. 
SEARCHES, 

for  incumbrances,  how  far  back  to  be  made,  527. 

against  whom  to  be  made,  528,  529. 

the  kind  of  incumbrances,  529,  530,  536,  544. 

expenses  of,  by  whom  to  be  borne,  558-562. 
SEISIN, 

a  term  not  applicable  to  estates  for  years,  81. 

not  necessary  for  ancestor  in  case  of  descents,  326. 

covenant  of,  broken  as  soon  as  made,  if  at  all,  414. 
does  not  run  with  the  land,  416. 
SETTLEMENT.    See  Marriage  Settlements,  272  et  sej. 


INPEX  701 

SHELLEY'S  CASE, 

rule  of,  formerly  law  in  this  state,  166. 

abolished  by  the  revised  statutes  in  1830,  167. 

applies  to  wills  as  well  as  deeds,  167. 
SHERIFF, 

the  ofl&cer  to  sell  under  executions,  455. 

personal  property  the  primary  fund,  457. 

mode  of  conducting  the  sale,  457,  458. 

evidence  to  sustain  a  title  under  such  sale,  458. 

an  irregularity  of  the  sheriff  will  not  prejudice  the  title,  458. 

his  duty  on  the  sale  to  give  certificates,  458. 

redemption  by  judgment  debtor,  458. 
by  a  creditor,  460. 

when  sheriff  to  give  deed,  and  its  contents,  460,  462.    See  Appendix. 

his  duty  as  to  description  of  the  property,  462. 
SIGNATURE, 

to  a  deed,  382.     See  Deed. 

to  a  will,  482,  484.     See  Will. 

when  by  a  mark  sufficient,  484,  485. 
SIXTY  YEARS'  TITLE, 

purchaser  entitled  to,  by  the  old  English  practice,  527. 

a  shorter  period  in  this  state,  527,  528. 
SPECIAL  OCCUPAI^T, 

who  might  be,  at  common  law,  57. 

how  changed  by  statute,  57. 
*  SPECIFIC  PERFORMANCE, 

of  contracts,  doctrine  of,  543. 

practice  of  courts  of  equity,  543,  544. 

courts  never  enforce  a  gratuitous  bargain,  544. 
STAMP,  * 

on  the  paper,  when  used  for  a  seal,  383. 

by  what  oflficerg,  383. 
STATUTE  RELATIVE  TO  DEEDS. 

1  R.  S.  738,  §  136  e«  sej. 

considered,  369  et  seq.     See  Deed.    Lbasb. 
STATUTE  OF  DESCENTS. 

1  R.  S.  750  et  seq,  considered  and  treated  of,  326  et  «ey. 
STATUTE  AS  TO  DEVISES. 

2  R.  S.  56  et  seq.  considered  and  treated  of,  472  et  seq. 
STATUTE  RELATIVE  TO  DOWER. 

1  R.  S.  740  et  seq.  considered  and  treated  of,  61  et  seq. 
STATUTE  OP  FRAUDS, 

requires  a  lease  for  a  longer  term  than  a  year  to  be  in  writing,  80,  81. 
such  lease  is  good  for  a  year,  and  void  for  the  excess,  426. 
contract  for  sale  of  land  to  be  in  writing,  and  subscribed  by  party  or  his 
agent,  375,  376. 


702  INDEX. 

STATUTE  OF  YRATTDS—<^ntinited. 

the  authority  to  the  agent  need  not  be  in  writing,  376. 

when  specific  performance  of  an  agreement  within  the  statute  will  be  de- 
creed, 544. 
STATUTE  A3  TO  Estates  for  tears,  and  rights  of  Landlord  and  Tenant. 

1  R.  S.  743  et  seq ;  2  R.  S.  505,  as  to  remedies.     Subject  treated  under  va- 
rious heads.     See  Landlord  and  Tenant.    Lease.    Estate  fob  Years. 
STATUTE  OF  LIMITATIONS, 

for  the  recovery  of  real  property,  differs  in  different  states,  350. 

it  does  not  transfer  an  estate  from  one  person  to  another,  351. 

it  quiets  the  possession  of  the  actual  occupant,  351. 

the  several  revisions  referred  to,  351. 

limits  the  people  to  forty  years,  351. 

and  others  to  twenty  years,  351. 

as  to  a  writ  of  right,  formerly  twenty-five  years,  851. 

now  reduced  to  twenty  years,  351. 

is  now  regulated  by  the  code,  352. 

defines  an  entry,  352. 

regulates  the  rule  as  to  adverse  possession,  353.     ^ee  Adverse  Possession. 

effect  of  the  statute  to  mature  a  wrong  into  a  right,  355,  358. 

when  it  begins  to  run,  359. 

exception  in  favor  of  persons  under  disability,  358,  359. 

nature  and  kinds  of  disability,  359. 

successive  disabilities  not  allowed,  859,  360. 

right  of  entry  of  a  reversioner  not  affected,  360. 
.  the  like  of  a  remainderman,  360.  , 

in  what  cases  conveyance  of  land  held  adversely,  void,  360,  361,  370. 
STATUTES  AS  TO  MARRIED  WOMEN. 

L.  of  1848,  ch.  200,  p.  307 ;  L.  of  1849,  ch.  375,  p.  528 ;  L.  of  1860,  ch.  90, 
p.  157 ;  remarks  on   the  above,  274,  277,  282.     See  Married  Women. 
Marriage  Settlements. 
STATUTE  AS  TO  TRUSTS. 

1  R.  S.  727  et  seq.  altered  as  to  charities.     L.  of  1860,  p.  607,  considered 
and  treated,  232  et  seq. 

STATUTE  OF  WILLS, 

2  R.  S.  56  et  seq. 

considered  and  treated  of,  472  et  seq. 
STOVES, 

put  up  for  use,  may  be  removed  by  tenant,  if  put  up  by  him,  86. 

should  be  removed  before  or  at  the  expiration  of  his  term,  86. 

effect  of  his  omission  to  do  so,  86. 
SUBSCRIBING  WITNESSES, 

to  a  deed,  386,  387.     See  Deed.    Will. 
SUPREME  COURT, 

jurisdiction  over  trustees,  246. 

in  cases  of  dower,  75. 

in  all  matters  of  equity,  248. 


INDEX.  703 

SURRENDER, 

meaning  of  the  term,  91,  300,  437. 

between  what  parties,  91. 

diflference  between  it  and  a  release,  437. 

operative  words  to  create  it,  437. 

requisites  to  create  it,  438,  489. 
SURROGATE, 

his  jurisdiction  to  assign  dower,  75. 

to  sell  real  estate  for  payment  of  debts,  340,  349,  350,  342. 
within  what  time  after  date  of  letters,  342. 

wills  proved  before  him,  482. 
SUSPENDED, 

when  descent  to  children,  by  act  of  1860,  327. 
SUSPENSION, 

when  right  to  rent  suspended,  217,  218. 

a  partial  extinguishment,  298. 
SUSPENSION  OP  POWER  OF  ALIENATION, 

when  void,  279,  280. 

of  ownership  of  personal  property,  280. 

cases  on  the  subject  referred  to,  279,  280  et  seq. 

in  reference  to  real  property,  525.     See  Dkvise. 

T 

TAXES, 

how  far  a  lien  on  land,  155,  536. 

payment  of,  should  be  provided  for  in  the  lease,  430. 

usually  assumed  by  the  tenant,  430. 
TAX  SALES, 

by  comptroller,  how  made,  463. 

how  far  his  deed  conclusive,  463,  464. 

at  common  law,  the  purchaser  buys  at  his  peril,  464. 

the  recitals  in  the  deed  not  evidence,  464. 
TENANT  FOR  LIFE, 

entitled  to  custody  of  title  deeds,  78. 

cannot  dig  for  gravel  or  lime,  except  for  repairs,  78. 

nor  open  a  new  mine,  78. 

his  hability  as  to  waste,  78. 

to  whom  Uable,  79. 

right  of,  as  to  emblements,  77. 
TENANT  FOR  HIS  OWN  LIFE, 

and  for  that  of  another,  a  freeholder  during  his  own  life,  362. 

his  right  to  emblements,  77. 
TENANCY  IN  COMMON, 

nature  of  the  estate,  182. 

incidents  of  the  estate,  183. 

may  make  partition,  183. 

no  survivorship  in,  183. 


704  INDEX. 

TENANCY  IN  COUMO^— continued. 

widow  of  one  entitled  to  dower,  183. 

acts  which  one  may  do  to  bind  his  companions,  184. 

liable  to  account  to  each  other,  184. 

may  exist  in  chattels,  184. 

in  growing  crops,  184. 

what  act  of  one  tenant  in  common  is  a  conversion,  185.     See  Pabtitioij, 
185  et  seq. 

possession  of  one  tenant  is  possession  of  both,  356. 

must  be  an  ouster  to  enable  one  to  sue  his  co-tenant,  357.    See  Adverse 
Possession. 

by  what  words  created,  409,  410.     See  Dkbd. 
TENANT  AT  SUFFERANCE, 

how  defined,  97. 

when  entitled  to  notice  to  quit,  96. 

and  when  not,  98. 
TENANCY  FRO'M  YEAR  TO  YEAR, 

less  frail  than  an  estate  at  will,  95. 

can  only  be  ended  when  the  year  closes,  95. 

entitled  to  notice  to  quit,  96. 
TENEMENT, 

meaning  of  the  term,  47. 
TENURE, 

meaning  of  the  term,  42. 

difference  between  feudal  and  allodial^  41. 

effect  of  the  act  abolishing  same,  43. 
TIME, 

computation  of,  by  Gregorian  style,  81. 

from  and  to  a  particular  day,  81,  424. 
TITLE  TO  THINGS  REAL, 

meaning  of  the  term,  312. 

requisites  to  a  perfect  title,  313,  814. 

possession,  right  of  possession,  right  of  property,  313,  314. 

from  what  period  title  to  be  deduced,  314. 

in  England  ^ot  sixty  years,  315. 

in  this  country,  the  period  of  statute  of  limitations,  315. 

mode  of  acquiring  title,  by  descent  or  pwrchase,  315. 

by  purchase,  eight  modes,  343,  345. 

by  sale  undet  judgment  and  execution,  454,  455. 
TREASON, 

a  conviction  for,  a  ground  of  forfeiture,  346. 
TREES, 

the  spontaneous  growth  of  the  soil  belongs  to  landlord,  77. 
such  trees  are  not  emblements,  77. 
TRUSTEE, 

when  vendee  is  trustee  for  vendor  of  the  unpaid  purchase  money,  114. 
when  vendor  is  trustee  for  vendee  of  the  land,  115. 


INDEX  705 

IB.JJSTE'E— continued. 

resignation  of,  when  allowed,  245. 

when  liable  to  be  removed,  246,  247. 

grounds  of  removal,  or  resignation,  247. 

when  trust  estate  ceases,  247. 

effect  of  death  of  trustee  upon  the  trust,  245. 

what  quantity  of  interest,  trustee  takes  in  active  trusts,  245.     See  Trusts. 

should  be  appointed  in  marriage  settlement,  279,  285. 

but  not  indispensable,  279. 
TEUSTS, 

the  legal  estate  vested  in  trustee,  232. 

may  be  created  by  will  or  grant,  233,  242. 

resulting  trusts,  how  defined,  234. 

how  modified  by  revised  statutes,  235,  236. 

may  be  shown  by  parol,  236. 

policy  of  the  law  to  vest  the  estate  in  the  party  beneficially  interested,  236, 

express,  retained  in  cases  of  assignment  for  benefit  of  creditors,  236,  237. 

trust  estate,  how  defined,  237. 

express  trusts,  when  retained,  237. 

extended  to  various  objects  by  later  statutes,  238  etseq. 

of  receivers  appointed  by  order  of  court,  239. 

for  religious  corporations,  240. 

trusts  under  revised  statutes  relate  only  to  real  estate,  242. 

trusts  in  personal  property  may  be  created,  242. 

when  valid  as  a  power,  242. 

power,  a  lien  upon  the  land,  242. 

for  education  and  support  of  children,  243. 

formal  trusts  abohshed,  243. 

estate  vested  in  trustee,  243. 

party  beneficially  interested  cannot  assign  it,  243. 

when  valid  as  a  power,  244, 

purchaser  of  trust  estate  with  notice,  bound  by  it,  244. 

in  good  faith,  not  liable  for  the  application  of  the  proceeds,  245, 

on  death  of  sole  trustee,  new  one  to  be  appointed,  245. 

resignation  of  trustee,  when  allowed,  245. 

effect  of  death  of  trustee  upon  the  trust  estate,  245. 

when  court  can  remove  trustee,  246,  247. 

grounds  of  removal,  or  resignation,  247. 

when  trust  ceases,  247. 

when  the  legal  and  equitable  estates  unite  in  the  same  person,  247. 

when  statute  of  limitations  apphes,  247,  248. 

trusts  now  executed  by  the  supreme  court,  248. 

no  lapse  of  time  a  bar  between  trustee  and  cestui  que  trust,  248. 

in  marriage  settlements,  should  follow  the  language  of  the  statute,  281. 

to  pay  over  to  the  beneficiary,  good,  281,  282. 

estates  held  in,  not  devisable,  479,  480. 
W1LL.--45 


706  INDEX. 

U 

UNCLES, 

of  intestate,  when  to  take  by  descent,  333. 
USAGE, 

of  at  least  twenty  years,  when  it  gives  a  right  to  an  incorporeal  heredita- 
ment, 347. 

how  it  diflfers  from  a  custom,  347,  348. 
USE  AND  OCCUPATION, 

when  it  hes  for  rent,  99. 

not  when  the  entry  is  under  a  contract  to  purchase,  99. 

only  when  the  relation  of  landlord  and  tenant  exists,  99. 

is  founded  on  contract  express  or  implied,  100. 

statute  on  the  subject,  214,  215,  216. 

will  lie  when  tenant  holds  over,  216. 
USER,  K 

evidence  of  a  right,  196,  209. 
USES  AND  TRUSTS, 

general  view  of  the  old  doctrine,  230. 

provisions  of  the  revised  statutes,  232.     See  Trusts. 
USURIOUS  INTEREST 

not  recoverable  on  a  mortgage,  147. 

an  agreement  in  advance  to  pay  interest  upon  interest  is  not  usurious,  147. 

but  such  agreement  will  not  be  enforced,  147.  I 


V 

VALUABLE  CONSIDERATION, 

wherein  it  differs  from  a  good  consideration,  379,  380. 
VENDEE, 

trustee  of  vendor  for  unpaid  purchase  money,  114,  115. 
VENDOR, 

when  he  has  a  lien  for  purchase  money,  114,  124. 

how  far  upheld  in  equity,  114,  124. 

deposit  of  title  deeds,  how  far  a  hen,  114. 

without  restriction,  cannot  prevent  his  vendee  from  building  on  his  own 
land,  219. 

sale  of  real  estate,  makes  the  vendee  the  trustee  of  the  vendor  for  the  un- 
paid purchase  money,  114,  115. 
VOLUNTARY  CONVEYANCES, 

not  aided  in  equity,  379. 

difference  between  voluntary  consideration  and  valuable  one,  379. 
VOLUNTARY  WASTE, 

tenant  Uable  for,  78. 

digging  gravel,  Ume,  &c.,  except  for  repairs,  is  such  waste,  78. 


INDEX.  ■  707 

WAINSCOTS, 

WASTE, 

English  doctrine  of,  not  applicable  to  our  unsettled  land  78 
English  rule  as  to,  78. 
voluntary  or  permissive,  79. 
who  may  bring  the  action,  79. 
and  against  whom,  79. 

how  as  to  joint  tenants  and  tenants  in  common,  79. 
when  heir  may  have  the  action,  79. 
by  mortgagee  against  mortgagor,  126.    ^ 
WATER,  "  ^    ' 

right  to  the  flow  of,  220,  222. 

extends  to  thread  of  the  stream,  220. 

boundary  on  a  stream,  how  far  it  extends,  220  221. 

remedy  for  diverting,  222.  ' 

rule  as  to  subterranean  streams,  222. 

prescriptive  right  to,  when  obtained.  222 

WATER-TUBBS, 

put  in  by  tenant,  may  be  removed  by  him  86 
WAYS,  J'        ,oo. 

a  privilege  of  going  over  another's  land,  193. 
may  be  claimed,  1.  by  grant,  194. 

2.  by  exception,  and  reservation  to  the  grantee,  194. 

3.  by  prescription,  194. 

4.  from  necessity,  194. 
how  to  be  used,  194. 

grantor  of  the  land  may  designate  it,  194. 
it  continues  so  long  as  the  necessity  lasts,  195. 
owner  of  the  road  to  build  and  repair  it,  195. 

when  out  of  repair,  the  owner  cannot  go  on  the  adjoining  close,  without 
bemg  a  trespasser,  195.  •'6  ,  uuu 

private  way  granted  without  designation  may  be  located  by  usage  196 

the  grantee  of  the  road  must  keep  it  in  repair,  196. 

If  the  way  be  acquired  by  deed,  it  cannot  be  lost  by  non-user  196 

It  acquired  by  vser,  it  may  be  lost  by  non-user,  196. 

It  may  be  extinguished  by  unity  of  seisin  and  possession,  196  199 

private  roads,  allowed  by  the  constitution,  197. 

such  road  can  only  be  used  by  the  applicant,  197. 

damages  how  assessed,  197. 

must  not  exceed  three  rods  in  width,  198. 

cases  in  which  highway  labor  may  be  given  to  it,  19t. 

rule  as  to  fencing  it  is  not  uniform,  199, 


708  INDEX 

WAYS — am  tinned. 

there  are  three  kinds  of  ways,  199. 

1.  a  footway,  199. 

2.  a  foot  and  horse  way,  199. 

3.  embracing  both  the  others,  a  cart  way,  199. 
WIDOW, 

her  rights  as  to  dower.     See  Dower,  61  et  seq. 

not  bound  to  support  minor  children  of  her  deceased  husband  by  a  former 
wife,  328,  note. 
WIFE 

may  convey  her  land  acquired  under  act  of  1849,  without  joining  her  hus- 
band, 391.    See  Doweb.    Husband  and  Wife.    Acknowledgment. 
WILL, 

requisites  to  the  execution  of,  482. 

should  be  proved  before  surrogate,  482. 

but  not  necessary  to  its  validity,  482. 

parties  capable  of  making  a  will  of  lands,  472. 

who  are  disabled  from  making  it,  472  et  seq.     See  Idiots.    Lunatics.    Mas- 
KiED  Women.     Infants. 

all  natural  persons  may  take  under  a  will,  474. 

so  may  posthumous  children,  474. 

may  married  women  and  illegitimates,  474. 

corporations  can  only  take  when  authorized  by  their  charter  or  special 
statutes,  475,  476. 

policy  of  the  law  with  respect  to,  476. 

aliens  may  take  under  a  will,  477,  478. 

real  estate  may  be  devised,  478. 

after-acquired,  lands  pass  by  a  will,  478,  479. 

but  not  at  common  law,  478,  479. 

trust  estates  cannot  be  disposed  of  bywill,  479,  480. 

equitable  freeholds  may  be,  480. 

so  also,  a  possibility  coupled  with  an  interest,  480. 
estates  held  adversely,  480. 

but  not  estates  held  in  joint  tenancy,  480. 

mortgagor,  before  foreclosure,  may  devise,  481. 

rent  charge  is  devisable  by  will,  481. 

formalities  necessary  to  a  valid  ivill,  481. 

parties  must  be  of  full  age,  and  not  under  disability,  481. 

must  be  subscribed  by  testator  at  the  end  of  the  will,  482,  484. 

must  be  in  writing,  written  with  pen  and  ink,  and  not  with  a  pencil,  483. 

not  material  in  what  language,  483. 

may  be  subscribed  by  a  mark,  484. 

subscription  must  be  in  the  presence  of  two  witnesses,  485. 

must  be  declared  by  testator  to  be  his  will,  486. 

attestation  clause  not  indispensable,  but  is  strongly  recommended,  487. 

each  witness  must  sign  his  name  at  the  end  of  the  will,  488. 

and  subjoin  his  place  of  abode,  488. 

must  sign  at  the  request  of  the  testator,  488-490.  ' 


INDEX.  709 

WILL — continued. 

attestation  clause  should  be  read  over  to  witnesses,  491. 

if  testator  be  blind  or  illiterate,  the  whole  will  should  be  read  over  in  the 

presence  of  the  witnesses,  491. 
codicils  are  to  be  executed  by  the  same  formalities,  491. 

need  not  be  annexed  to  will,  499. 
will  and  codicil  construed  together  as  one  instrument,  504. 
revocation  and  republication  of  wills,  492. 
revocation  express,  by  subsequent  will  declaring  it,  492. 
implied,  by  marriage  and  birth  of  a  child,  493. 
by  marriage  of  a  feme  sole,  494. 
by  sale  of  the  lands  devised,  495,  496. 
effect  of  will  as  to  post  testamentary  children,  497. 

when  a  partition  is  made,  498. 
revocation  not  to  revive  a  former  will,  498. 
in  what  cases  devises  by  will  are  void,  500  et  seq. 
to  charities,  by  parties  having  certain  kindred,  501. 
corporations  not  authorized  to  take,  500,  501. 
an  alien,  502. 
when  void  for  uncertainty,  502,  503,  514,  515. 
general  maxims  of  construction  of  wills,  504,  505. 
as  to  construction  of  words,  506,  507. 
when  some  devises  good  and  some  bad,  508. 
as  to  description  of  the  estate,  510. 
effect  of  the  word  estate  in,  510. 
as  to  description  of  devisee,  511,  512. 
executory  devises  in  a  will,  513,  523. 
when  blank  is  left  for  devisee's  name,  516. 
examples  of  void  legacies,  514-519. 
by  what  particular  words  estates  are  created  by  a  will,  519. 

a  condition  or  hmitation,  520,  521. 
distinction  between  condition  and  limitation,  520,  521. 
mode  of  charging  real  estate  by  will,  521. 

charge  may  be  express  or  implied,  522,  523.  ' 

executory  devises  defined,  523. 
distinction  between  them  and  a  remainder,  524. 
effect  of  suspending  power  of  ahenation,  525. 
object  of  residuary  clause  in  a  will,  526. 

will  should  be  proved  as  a  will  of  real  estate,  and  be  recorded  by  surrogate, 
549.     See  Devise. 
WITNESSES 

to  a  deed,  386,  387.     See  Deed. 
will,  485,  488.     See  Devise. 
WORDS, 

by  which  particular  estates  are  created,  407  et  seq. 
of  limitation,  409,  410. 
WEIT  OF  RIGHT, 

abolished  by  the  code  of  procedure,  317. 


710  INDEX- 


YEAR, 

tenancy  from  year  to  year,  93,  95,  96,  97. 

mode  of  computation  of  fractional  parts  of,  81. 

the  added  day  of  leap  year,  and  the  day  preceding,  reckoned  together  as 
one  day,  81. 

the  term  month  is  a  calendar  month,  81. 
YIELDING  AND  PAYING, 

the  proper  form  of  a  covenant  to  pay  rent  in  a  lease,  427. 

this  covenant  runs  with  the  land,  427. 

effect  of  it  as  a  covenant,  427. 
YIELD  UP, 

covenant  for  tlae  tenant  to,  at  the  end  of  his  term,  usually  inserted  in 
leases,  429. 


THE   END. 


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